Falling between the cracks - a troubling case

By Sara Stout Ashcraft The Daily Record Newswire Sometimes as attorneys we get more focused on the intricacies of the law than on the realities of the case. Of course this is what we are paid to do, but it is important to consider that behind every entry in a caselaw book, there are real people with sometimes very serious real life issues. In re Bridget Y. [92 A.D.3d 77 (4th Dept., 2011)] is a very troubling case involving the Uniform Child Custody Jurisdiction and Enforcement Act. The case is complicated and involves several courts. In 2008, the parties had four daughters, ranging in age from mid-teens downward. The children's mother died, the father remarried, and the stepmother adopted children. In 2007, father, stepmother and children moved from Pennsylvania to New Mexico. In 2008, the father and stepmother were arrested and indicted for felony child abuse for leaving 3 of the children unsupervised in a remote, bug-infested trailer for at least six weeks --without adequate food or supplies during the heat of the New Mexican summer. Further, the parents had allegedly at times confined each child to a bedroom or the garage for periods ranging from a few days to months, giving the children only bread, peanut butter and water during the garage confinements, only allowing them out once or twice a day to be taken to the bathroom by the father. One child stated that she had been kept in the garage for "about three months" for failing to complete her home-schooling work. Another child said that the father had left her at an unoccupied and unfurnished townhouse for about two weeks. She had only been permitted to bring a few clothes, bread and peanut butter, and a piece of cloth to serve as both blanket and towel. When the father retrieved her from the townhouse, he then confined her in the garage for two weeks longer. The children's schooling was erratic and at times they were supposedly being home-schooled by the stepmother. These incidents are just a small part of the heartbreaking abuse allegedly inflicted on the children by the parties. A New Mexico Magistrate Court entered a no-contact order against the parents, and with the parents' consent the children were put in the care of an aunt and uncle, New York residents, by the New Mexico Children, Youth, and Families Department. The parents then supposedly notified the aunt and uncle they wanted the children back, and the aunt and uncle filed a petition for custody in New York's Chautauqua County Family Court. The Department of Social Services also started a neglect proceeding against the parents. The parents later filed a custody petition in the New Mexico District Court seeking to be "reunited" with their children. Two days later, Family Court issued a temporary custody order that asserted temporary emergency jurisdiction. Then the New Mexico court issued an "Order Assuming Jurisdiction," and ruled that the parents were the "sole legal custodians" of the children. The New Mexico court stated that the parents wanted to name two Ohio residents as temporary guardians, ordered a home study, and reserved on the issue of permanent custody. The parents then tried to register the New Mexico order in Family Court. The Family Court judge voiced concerns about New Mexico's failure to charge the parents with neglect, although criminal abuse charges were pending. After approving the home study, the New Mexico court ordered immediate transfer to the Ohio guardians, but reiterated the parents' constitutional rights as sole legal guardians. The parents then asked the Family Court to register and enforce the New Mexico order, dismiss the New York custody and neglect proceedings, vacate its temporary custody order, and transfer the children to the Ohio residents. DSS filed for temporary custody of the children, submitting a psychologist's affidavit stating that the children's accounts of abuse were credible. Family Court granted the request from DSS, citing the "emergency" exception in the UCCJEA. On appeal, the Fourth Department held that Family Court properly exercised temporary emergency jurisdiction considering New Mexico's social service division's failure to charge neglect and the New Mexico court's failure to protect the children pending the resolution of the criminal charges. Family Court retained the emergency jurisdiction pending resolution of criminal charges or when the emergency is over, i.e., until the New Mexico court ensures that the children are not in "imminent risk of harm." ---------- Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law. Published: Fri, Apr 27, 2012