By Daniel Wiessner
Dec 27 (Reuters) - Family court judges in New York state may
grant custody of children to parents who have been barred by a
criminal court from contacting their children, an appeals court
In a unanimous decision, the Appellate Division, Second
Department, on Wednesday held that a family court may override a
criminal order of protection as long as the order includes a
clause indicating that it is subject to future amendment.
In custody cases, family courts are empowered to make
decisions "in the best interests" of children, and that
authority "should not be circumscribed by a criminal court order
of protection which expressly contemplates future amendment of
its terms ... pertaining to custody and visitation," Justice
John Leventhal wrote for the court.
The ruling reverses a decision in May by a family court
judge in Queens that prohibited a woman identified as Maria A.
from having unsupervised visits with her son, Elijah L. The
mother had been barred by a criminal court from contacting her
son after she was convicted of beating him.
The abuse occurred in December 2011, the Second Department
said, and Maria A. in February pleaded guilty to endangering the
welfare of a child. She was ordered to complete a parenting
course and anger management program, and was barred from
contacting Elijah L. for five years.
After the mother completed the programs, the criminal court
in May amended the order of protection to include the words
"subject to family court."
The family court judge, Marybeth Richroath, found that it
was in the best interest of Elijah L. and his sister, Brianna
L., to be returned to their mother. However, she held in May
that the amended criminal order did not give her "jurisdiction
to, in essence, overrule the criminal court."
Richroath granted custody of both children to their father
and, citing the criminal order of protection, barred Maria A.
from having unsupervised or overnight visits with Elijah.
The mother and the children separately appealed, arguing
that family courts have the authority to override criminal court
orders when it is in the best interests of the children.
In August, while the appeal was pending, Maria A.
successfully moved to delete the provision of the criminal order
that barred her from contacting Elijah. Richroath then modified
the family court order to grant custody to Maria A.
As a result, the Second Department could have dismissed the
appeal as moot, but Leventhal said the court took up the case
"on the ground that it is a recurring issue of public importance
typically evading review" by appeals courts.
Family courts are better situated than criminal courts to
make such decisions, Leventhal wrote, because they typically
have more information about the children's wishes and the
fitness of the parents.
Leventhal was joined by Justices Peter Skelos, Anita Florio
and Priscilla Hall.
The mother's attorney, Matthew Wolf, and the attorneys for
the children did not immediately respond to requests for
The cases are the Matter of Brianna L. and the Matter of
Elijah L., New York State Supreme Court, Appellate Division,
Second Department, Nos. 26716/11 and 26717/11.
For the mother: Matthew Wolf.
For the children: Tamara Steckler and Claire Merkine of the
Legal Aid Society.
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