New York Criminal Lawyer Blog
A man and a woman, never been married, have a 12 year old child. There have been 6 petitions previously filed between the parents, all in Rensselaer County Family Court (in 2003, 2004, 2006, 2010 and 2 in 2011). Two were withdrawn, three were settled and one is pending.
The mother has filed a custody petition in Albany County Family Court. The father has filed a motion requesting that the matter be transferred to Rensselaer County Family Court on the grounds of inconvenient forum and forum shopping.
A New York Criminal Lawyer said that under the Civil Practice Law and Rules (CPLR), a discretionary change of venue motion would be controlled by section 510(3) and granted where the convenience of material witnesses and the ends of justice will be promoted by the change. The section is, for all practical purposes, identical in meaning to Family Court Act ยง174, which requires that a change of venue by supported by good cause.
In the instant case, the father asks that the mother’s petition be moved from Albany County Family Court to Rensselaer County Family Court. The Court will take judicial notice that those two court houses are 7 miles or a 13 minute drive apart.
The issue before the Court is whether or not venue of the mother’s custody petition should be changed from Albany County Family Court to Rensselaer County Family Court.
The father cited several rulings of the court in support of his arguments. He claims that his motion is based upon good grounds; that factors to be considered are hardship to the respondent, availability of another forum, locus of the cause of action and residency of the parties.
In one of the cases cited, domestic violence was such that it would have been dangerous for the mother to have been forced to return where the father lived to prosecute her action. However, it must be noted that danger to the mother offset any inconvenience to the father of having to defend himself in Albany County. To argue that the herein case presents as compelling a circumstance for moving the matter to a court 13 minutes away is unjustified. The father presents no good cause for the transfer of this case to Rensselaer and no evidence that the mother is forum shopping.
The mother resides in Albany County with the child and it is not disputed that she has resided with the child in Albany County for the past seven years. A Bronx Criminal Lawyer said there is clearly no hardship to the respondent in appearing in Albany County vs. Rensselaer County. The ability of witnesses to appear in either county is about equal.
Moreover, there has never been a trial on the custody or parenting time of the child. While there has been an in camera, there has been never been a plenary judicial determination made in Rensselaer County. All previous matters were either settled or withdrawn. The Court finds no harm to the parents or the child by having to appear in Albany County Family Court, 13 minutes away from the other county’s courthouse. The only action pending in that county was filed by the father three weeks after the mother filed her petition in Albany County.
On the argument of the father that there has been an extensive litigation in Rensselaer County within the last year: a review of the Court System date base (UCMS) shows 4 appearances on one petition in late 2010 and early 2011; however, that petition was withdrawn. Also, there were two appearances on a petition filed in March 2011, and one appearance on a petition filed in September, 2011; however, that petition has been held in abeyance pending the decision on venue in the herein case. Altogether there were 6 appearances over a fourteen month period; however, there was never a trial and no judicial determination of the matter has been made.
Accordingly, the Court finds that Albany County is the proper venue.
If you have been charged with domestic violence, sex crimes, or other criminal mater, it is important that your rights are protected. To know the legal steps necessary for your safety, contact Stephen Bilkis & Associates. Consult for free with the best, well experienced and highly trained New York City Domestic Violence Attorneys or New York City Criminal Attorneys from our firm.