Motion to Dismiss Father's Custody Petition Denied

Westchester County Family Court

In a custody dispute the primary document used is called a petition. Either parent may file a custody petition with the Family Court. Once the custody petition is on file with the court either party may make an application to dismiss the petition for a variety of reasons.

Some reasons for dismissal is that the petition is defective, the petition is missing vital information or is simply insufficient.

In the White Plains Family Court a mother made an application to dismiss the father's custody petition on the grounds that the parties had a signed and notarized agreement as to custody and visitation. The mother in the White Plains Family Court claimed that since there was this signed agreement the agreement itself should control and the Westchester County Family Court did not have jurisdiction because the agreement was a contract and as a contract the only court that court have jurisdiction was the New York State Supreme Court.

The father by his attorney Andrew Proto, objected to the dismissal and argued that the Westchester County Family Court was the appropriate jurisdiction. The father also argued that simply because there was a written agreement he was not precluded from filing a petition with the Family Court because there was a change in circumstances in the agreement and the Family Court was in the best position to hear all arguments to determine facts regarding custody of the parties 5 year old daughter.

The Family Court agreed with the father and denied the mother's motion to dismiss.

Custody Petition

The primary argument behind any custody petition is what is in the child's best interest including issues the parties may raise involving legal and physical custody. The importance of the initial petition should not be overlooked as it is the foundation of the entire proceeding. Any Family Court petition should be drafted by a Family Court lawyer with knowledge of the individual facts of the case and a great knowledge of the New York State Family Court Act (FCA) and the New York State Domestic Relations Law (DRL).

It is common for attorneys to have insufficient petitions dismissed or use an insufficient petition against the party as a failure to state a cause of action.

If you or a loved one has a Family Court matter, custody or otherwise it is important to contact a top Family Law lawyer.