A.K., Petitioner, v. J.B., Respondent. (2024)

Petitioner filed a special proceeding for custody and visitation with this Supreme Court pursuant to Domestic Relations Law section 240. Thereafter, Petitioner filed an Emergency Order to Show Cause seeking, inter alia, interim custody relief.

DISCUSSION

It is black letter law that the Supreme Court possesses the discretion to refer a custody proceeding to the Family Court within its judicial district. (NY Const Art VI, § 19; FCA § 651[a]; Kagen v Kagen, 21 NY2d 532, 538[1968] [“In matters such as this, plaintiffs are at liberty to commence their proceeding in the Family Court. If, instead, they should choose the Supreme Court for purposes of litigation, that court is empowered to ‘transfer any action or proceeding, except one over which it shall have exclusive jurisdiction to any other court having jurisdiction of the subject matter’ ”][internal citation omitted]; see also, Wiener v Wiener, 10 AD3d 362, 363 [2d Dept 2004]; McGee v McGee, 180 Misc 2d 572, 582 [Sup Ct, Suffolk Cnty 1999][“ Although the Supreme Court is constitutionally empowered to exercise every power of the Family Court, it is within the discretion of the Supreme Court to hear a custody issue or refer it to the Family Court.”]; People ex rel. Moffett v Cooper, 63 Misc 2d 1005, 1007 [Fam Ct, Dutchess Cnty 1970][“[S]ection 651 of the Family Court Act [․] can only be interpreted as a legislative recognition of the [․] referral and transfer of custody proceedings.”][internal citations omitted]). Indeed, the Court of Appeals has stated unequivocally such referral is the “better practice.” (Kagen, supra at 538). Here, the Court exercises such discretion and refers this custody proceeding to the Family Court of New York County.

Ariel D. Chesler, J.