41 Misc. 2d 650 | N.Y. Sup. Ct. | 1963
In this proceeding, brought on the petition of Gloria Chin, as guardian ad litem of the infants Victoria Louise Yen and Georgia Priscilla Yen, for an order determining the custody of the infants, the Attorney-General, appearing for the respondents Family Court, and the Honorable Robert E. Dempsey, as Judge of that court, moves to dismiss the petition on the ground that it does not state facts sufficient to entitle the petitioner to any relief. The facts, insofar as they are pertinent, are stated in the decision filed herewith in a companion proceeding in the nature of prohibition brought by the petitioner pursuant to article 78 of the Civil Practice Law and Rules. The motion is granted. It has been decided in the companion proceeding (41 Misc 2d 641) that petitioner is not entitled to relief in the nature of prohibition. No facts are stated in the petition in this proceeding and no evidence has been submitted which entitles her to any other relief against these respondents. However, another question must be decided so that the proceeding may proceed to trial, as it should, as soon as possible. On the argument of the motion to dismiss, the court suggested that it might be to the advantage of all the parties to transfer this proceeding to the Family Court for determination, and the views of counsel were requested with respect to the jurisdiction of the Family Court to entertain it. Both the Attorney-General and the attorneys for the petitioner have agreed that the Family Court has such jurisdiction and it is my opinion that its jurisdiction may not be questioned despite the fact that no express provision has been made in the Family Court Act for the commencement of such a proceeding in that court, or for the hearing and determination of such a proceeding if it is transferred from or referred by the Supreme Court to the Family Court, and such proceedings are not mentioned in the provisions of the act in which the various classes of proceedings over which the Family Court has jurisdiction are enumerated (Family Ct.
It is difficult to understand why proceedings involving the custody of minors, commenced by petition, as in the Supreme Court, are not specifically mentioned in section 115 of the Family Court Act. Whatever the reason may be, it is clear that the failure to provide for such jurisdiction in the act does not deprive the court of jurisdiction expressly granted by the Constitution (see decision filed herewith in Matter of Chin v. Wyman, 41 Misc 2d 641). Since the Family Court has jurisdiction of the subject matter, and of . the classes of persons named as parties in such proceedings, this proceeding may be transferred (N. Y. Const., art. VI, § 19, subd. a) and in my opinion should be transferred to that court for determination. The Family Court has before it a civil judicial proceeding (CPLR 105, subds. [d], [f]) for the enforcement of a requisition issued in the State of Massachusetts for the return of these infants to that State (Interstate Compact on Juveniles; L. 1955, ch. 155), and in view of its jurisdiction and responsibility with respect to the custody and welfare of infants, may find it necessary to decide in that proceeding the same issues which may arise in this proceeding. Consequently, it appears to be advisable, in the interest of orderly procedure, to transfer this proceeding to that court, so that all the issues may be decided at one time, and in the same court. Such disposition is requested by the Attorney-General, and is not opposed by the attorneys for the petitioner, if this court is of the opinion that an extended hearing will be required, aided by the investigative and other facilities of the Family Court. It is my opinion that such a hearing may well be required, although that question may not be decided with certainty at this time. An order may be presented accordingly, on notice, dismissing the proceeding against the moving respondents, and providing for its transfer to the Family Court for such further proceedings therein as may be ProPer-