IN RE: RAMONA L. MCL. (2018)

PROCEDURAL HISTORY

The Mother, Ramona L. McL. (hereinafter “Mother”) and the Father, Bradley L. A. (hereinafter “Father”) are not married, but have one child in common, Nathan G. A. (hereinafter “Nathan”), age 6. The parties have filed numerous petitions against each other in family court since April, 2015. Two modification petitions filed by the Mother remain pending before Referee Marilyn Moriber (hereinafter “Referee Moriber”). Those petitions seek to modify the terms of a order, dated September 24, 2015, in which the parties were awarded joint legal custody of Nathan, the Mother was awarded physical custody, and the Father was awarded visitation.

On March 21, 2018, the Mother filed a petition for a writ of habeas corpus alleging that the Father was refusing to return Nathan to her after his regular visitation time period with the child had ended. See NY Fam. Ct. Act § 651 (McKinney's 2018); see also NY Dom. Rel. Law § 70 (McKinney's 2018). The matter was heard by this Court on an intake day. The Mother testified that the Father did not return the Nathan in disregard of the parties' custody and visitation order. She told the Court that Nathan had been with his Father since March 17, 2018, and that the Father had not been responding to her texts. This Court signed the Mother's writ of habeas corpus and adjourned the matter to meet the Mother's pending petitions on their next scheduled court date, March 28, 2017, before Referee Moriber. This Court designated Referee Moriber to handle the return on the writ of habeas corpus in conjunction with the other matters to which she is assigned.

Although the practice of the New York City Family Courts has been to assign only judges to handle writs of habeas corpus, the law suggests otherwise. A family court may vest a referee with the same power and authority as a judge with limited statutory exceptions. Authorization for referees to handle such matters can be found in the New York Civil Practice Law and Rules § 4001, and the New York Judiciary Law § 2–b(3) and § 117. See NY C.P.L.R. § 4001 (McKinney's 2018) (power of referees by appointed by court); see also NY Jud. Law § 2–b(3) (McKinney's 2018) (courts may create new protocols to ensure smooth administration of its powers and jurisdiction); NY Jud. Law § 117 (McKinney's 2018) (parties may stipulate to referees handling cases with full force and effect as do judges). It follows that the Family Court administration may appoint referees to entertain writs of habeas corpus instead of routinely assigning these matters to judges. In that way, a referee may dismiss appropriate cases, particularly where the petitioner already filed a custody petition and has no order of custody. See Kiara B. v. Oma R., 147 A.D.3d 476 (1st Dep't 2017) (no right to habeas corpus relief where no custody order in place). Where the Family Court administration chooses not to do so, this Court finds that individual judges may designate referees to handle such matters in cases such as this, thereby avoiding needless appearances in different court parts by the same litigants.

This constitutes the decision, opinion, and order of the Court.

John M. Hunt, J.