Emergency Transfer of Child in New York Custody Dispute Results in Judicial Ethics Charges

Silhouettes of ChildrenDisputes over child custody can create significant complications in a family law case. Unlike financial issues, such as child support, the legal standard for determining custody arrangements depends entirely on subjective factors that are unique to each case. No formulas or calculations can determine the best interest of a child. New York City family courts therefore have a certain amount of discretion to make decisions about child custody based on the available facts. In emergency situations, this requires a quick response. A pending judicial ethics complaint against a New Jersey judge, who ordered the transfer of a child from one parent to another based on what allegedly turned out to be incorrect information, shows just how complex these disputes can become. Matter of DeAvila-Silebi, Docket No. ACJC 2016-001, complaint (N.J. ACJC, Oct. 20, 2016).

Most states use the “best interest of the child” standard in child custody decisions. N.Y. Dom. Rel. L. § 240(1)(a). This means that the paramount concern for the courts is finding an arrangement that is most beneficial to the child or children. In a custody dispute between parents, each parent can present evidence to support their claims, but the final decision should not be based solely on whether either parent has somehow earned the right to custody. Under New York law, custody by a parent or another individual who has been convicted of an offense involving domestic violence or certain other offenses is presumed not to be in a child’s best interest.

The complaint in DeAvila-Silebi addresses the use of police by a judge to transfer a child from one parent to the other, based on what she claimed was an emergency situation. The respondent judge reportedly received a phone call early on a Saturday morning in May 2015. The caller claimed to be an attorney for the mother in an ongoing custody dispute in Essex County, New Jersey, and she told the judge that the child’s father was keeping the child in Fort Lee, a borough in Bergen County, despite the mother having the right of custody at that time. She reportedly called the Fort Lee Police Department and asked them to have an officer accompany the mother while she retrieved the child. The police did so, and the child was returned to the mother’s custody.

In August 2015, the Advisory Committee on Judicial Conduct (ACJC) opened an investigation into the incident. The respondent was in the process of transferring from a court in Bergen County to a court in Essex County when she received the phone call, calling into question whether she had the authority to be involved in the case. A further investigation reportedly determined that the phone call originated from a cell phone owned by the mother and that the respondent was not sure if the caller was an attorney. The respondent told the police that she had seen the court order in the custody case, but the ACJC claims that she later admitted that she had not. The ACJC’s complaint asserts two counts, for misrepresentation of facts to the police department and for interceding in a matter “that was not the subject of an emergent motion” and without “solicit[ation] by either party.” DeAvila-Silebi, complaint at 5.

A knowledgeable and skilled New York City child custody attorney can help you understand your rights and obligations in a child custody dispute and can advocate for your interests both in and out of court. Ingrid Gherman has represented parents and spouses in family law disputes in New York City for over 30 years. Contact us online or at (212) 941-0767 today to schedule a confidential consultation to see how we can help you.

More Blog Posts:

Paternity Remains a Difficult Legal Issue in New York Family Law Cases, New York Divorce Attorney Blog, October 27, 2015

Grandparents Must Establish “Extraordinary Circumstances” to Claim Custody of Child from Parent in New York, New York Divorce Attorney Blog, May 25, 2015

New York Appellate Court Reverses Order Requiring Supervised Visitation Between Mother and Teenage Children, New York Divorce Attorney Blog, May 11, 2015

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