Still, Richroath said, the language did not give her "jurisdiction to, in essence, overrule the Criminal Court, and return custody of the protected party to the [mother]."
Though it would have been in the children's best interests to return to Marie, Richroath said the order of protection's wording foreclosed that possibility.
As a result, she ordered the children be released to the custody of their father. Additionally, she said Elijah could not have unsupervised visitation or overnight visits with Marie.
Both the children and mother appealed.
After the appeal was filed, the Criminal Court issued another protection order that, among other things, deleted the problematic stay-away clauses. Consequently, Richroath allowed the children to be released to Marie.
The appellants acknowledged the turn of events rendered the case academic, but requested the Second Department to rule on the matter, which it agreed to do.
In his decision, Leventhal said Family Court is "uniquely situated" to issue rulings consistent with a child's best interests, for example having the power to order a child's examination in connection with protective proceedings.
Moreover, in such proceedings, attorneys are appointed for the children.
"In contrast, Elijah was unrepresented in the criminal proceeding," Leventhal noted. He also pointed out that Family Court had access to an ACS report on Marie's capacity as a parent.
"For these reasons, it is clear that it is the Family Court, not the Criminal Court, which is both empowered and best suited, following a dispositional hearing in a child protective proceeding, to select the dispositional alternative which is most consistent with the best interests of the children before it," Leventhal said.