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Appellate Court Says Family Court Can Overrule Criminal Court in Matters Pertaining to Welfare of Children
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On Wednesday, in a unanimous decision, the Appellate Division, Second Department ruled that a family court may override a criminal order of protection if that order includes a clause making the order subject to future amendment.

Though the legal debacles of the appellants prompting the instant appeal had already been resolved in lower courts during pendency of the appeal, the Second Department did not dismiss the appeal as moot, but took it up “on the ground that it is a recurring issue of public importance typically evading review.”

In the instant matter, the issue was whether family court judges had the authority to grant custody of children to parents who have been barred contact with the children by an existing order of a criminal court.


The appellate court held that family courts have the power to act “in the best interests” of children in custody matters, 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.”

The ruling reverses a decision by a family court judge in Queens, who, though sympathetic to the appellants, held that the family court did not possess the authority to override an existent order of the criminal court in the matter, despite the criminal court amending the order to make further restrictions “subject to family court.”

In this case a mother was convicted of beating her son and the criminal court passed an order barring her from contacting her son for five years and also to complete a parenting course and an anger management program. After the mother completed the programs successfully, the criminal court amended the order of protection by introducing the phrase, “subject to family court.”

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In family court, the judge Marybeth Richroath found it to be in the best interest for the children to be returned to their mother. However, she held that the amended order of the criminal court did not provide her with “jurisdiction to, in essence, overrule the criminal court.”

As a result, the family court granted custody of the children, brother and sister, to their father and barring the mother from having unsupervised or overnight visits to her children.

Following the order of the family court, both the mother and the children appealed separately. While the appeal was pending, the mother moved the criminal court successfully to have the order barring her from contact with her son removed. Following deletion of the bar by the criminal court, the family court granted custody of the children to their mother.

However, the appellate court found the issue of sufficient public importance to provide their ruling. The Appellate Division, Second Department made it clear in the matter that in matters of custody, family courts are typically in a better position than criminal courts, because they have more information about the wishes of the children as well as the fitness of the parents.

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.


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