Justice Leventhal
Family courts have the authority to release children to the custody of parents in cases where Criminal Court orders of protection forbid child-parent contact but also contemplate future amendments by the Family Court overseeing the case, a Brooklyn appellate court has ruled.
"The Family Court has the unique resources to effectuate and determine the best interests of the children, and its authority to do so should not be circumscribed by a Criminal Court order of protection which expressly contemplates future amendment of its terms by a subsequent Family Court order pertaining to custody and visitation," Justice John Leventhal (See Profile) of the Appellate Division, Second Department, wrote for a unanimous panel in Matter of Brianna L., 2012-05594, reversing a lower court.
With the underlying case already resolved by the time of the Dec. 26 decision, the Second Department still opted to rule on the matter calling the legal issues "important" and "likely to recur."
Leventhal was joined by Justices Peter Skelos (See Profile), Anita Florio (See Profile) and L. Priscilla Hall (See Profile), who heard oral arguments on Oct. 9.
The case arises from Marie A.'s guilty plea in Queens Criminal Court for endangering the welfare of a child in connection to her alleged beating of her then 6-year-old son, Elijah.
Marie was ordered to attend a parenting skills course and anger management program. She also had an order of protection entered against her in Queens Criminal Court that barred any contact with Elijah for five years.
New York City's Administration for Children's Services (ACS) then initiated neglect proceedings against Marie in Queens Family Court.
But the agency later submitted a report showing Marie had attended the court-ordered programs and "was capable of caring for" Elijah and his older sister, Brianna.
The Criminal Court order of protection was amended to bar Marie from any contact with Elijah—but included the phrase "Subject to Family Court."
In May 2012, Queens Family Court Judge Marybeth Richroath (See Profile) ruled the phrase was "shorthand" for "subject to subsequent Family Court orders of protection and visitation."
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