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New York Westchester County Child Custody Jurisdiction Testimony Provisional Order Frivolous Lawyers Attorney

Author: Atchuthan Sriskandarajah

In the Matter of Stanley F., Petitioner, v. Marlene F., Respondent

Family Court of New York, Westchester County

July 7, 1989

 

Facts:

Petitioner father by a motion brought on by an order to show cause sought temporary custody of the parties' two children. Temporary custody was granted to petitioner pending a hearing concerning the mental health of respondent mother and its effect, if any on the subject children.  Respondent filed a cross motion seeking an order to vacate the provisional order giving petitioner temporary custody on grounds that Ontario County, Canada was the proper place of jurisdictional adjudication of the issue of custody. and not the State of New York, has jurisdiction as there is a pending divorce action currently before the Supreme Court of Ontario, Canada, wherein custody is an issue. Respondent further contends that an Ontario County Supreme Court order of custody granting respondent sole custody of the two children is still in full force and effect. Law Guardian for the children, having been given an opportunity to submit papers on the issue of jurisdiction, chose not to do so.

Issues:

Whether the respondent possessed any mental deficiency which would have a detrimental effect upon the children if they were to be in her custody?

Whether the state of New York had jurisdiction over the issue?

  • Whether the respondent's motion for a fine against petitioner for bringing a frivolous motion should be granted?

Discussion:

This court held that during the fact-finding hearing which consisted of two full days of testimony, each side presented experts who had examined and evaluated the mother and subject children. At the conclusion of said hearing, the court determined that the mother did not possess any mental deficiency that would have the effect of impairing the health, safety or welfare of the children if they were to be in her custody. Accordingly, this court vacated that portion of the order to show cause dated June 16, 1989 which placed temporary sole custody in petitioner father, effective immediately.

This court held that based upon petitioner's assertion that the children were in danger of being physically or emotionally harmed if they were to remain in the care of their mother, this court acceded to respondent's request for New York to exercise jurisdiction solely for the limited purpose of determining whether, in fact, an emergency situation existed. Testimony at the hearing on the above matter having shown that an emergency situation does not now exist, the State of New York no longer has jurisdiction under the "emergency" section of the statute. In fact, for New York to exercise jurisdiction in the instant case would be contrary to the purpose and intent of the UCCJA which is to "avoid jurisdictional competition and conflict with courts of other states". In the instant case, the marital domicile of the parties was in Canada, and the respondent was brought up in Canada and lived there until recently. As for the children, they have spent most of their lives in Canada, including going to school there, and have grandparents there. In addition, respondent has a longstanding relationship with doctors in Canada who would be more knowledgeable than those in New York with regard to current and past situations. Further, a separation agreement and an order of custody, written and issued in Canada, and the pending divorce, must all be interpreted under Canadian law. Based upon the foregoing, maximum contacts with Canada plus access to relevant evidence there mandate that Canada retain jurisdiction

This court held that the respondent's motion for a fine against petitioner in the sum of no less than $ 5,000 for bringing a frivolous motion is denied. A parent's belief that court intervention is needed to protect the interests of a child based upon what he or she believes to be an emergency situation cannot be deemed frivolous. Testimony in the instant case clearly indicated that some of petitioner's assertions as to what happened did actually occur, and even though medical testimony as to an emergency situation proved him to be wrong, petitioner's action did not rise to the level of being frivolous.

Conclusion:

This court hence vacated the provisional order granting petitioner father custody. The court also granted respondent mother's cross motion on grounds that there were existing custody orders effective in Canada, which had jurisdiction over the dispute.

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm's unofficial views of the Justices' opinions.  The original opinions should be consulted for their authoritative content

Article Source: http://www.articlesbase.com/health-and-safety-articles/new-york-westchester-county-child-custody-jurisdiction-testimony-provisional-order-frivolous-lawyers-attorney-3468530.html

About the Author

The SRIS Law Group is a law firm with offices in Virginia, Maryland & Massachusetts.  The law firm assists clients with criminal/traffic defense, family law, immigration, civil litigation, bankruptcy & military law.  The law firm has Virginia offices in Fairfax County, Richmond, Virginia Beach, Loudoun County, Lynchburg County, Prince William County & Fredericksburg, Virginia.  The Maryland offices are in Montgomery County & Baltimore.  The Massachusetts offices are in Boston & Cambridge.  The New York office is in New York City.  The North Carolina Office is in Charlotte, NC which is in Mecklenburg County.  The California office is in Orange County, CA.

The law firm has more than 11 offices in Virginia, Maryland, Massachusetts, New York, California, North Carolina & India to serve the clients of the SRIS Law Group.

Tier1 case law and clarity of judge's decision

Author: Shwan

An appeal cannot be allowed simply because some findings of fact are made in favour of the appellant if those findings do not entitle him for leave to remain in accordance with Immigration Rules

Mushtaq (clarity of judge's decision) Pakistan [2011] UKUT 122 (IAC) (28 March 2011)

This case was heard on 8th March 2011 at the Upper Tribunal at Field House.

The appellant appealed against the Immigration Judges decision which was unclear. At the end of her determination, the Immigration Judge concluded ‘I allow the appeal to the extent identified above'.  It was unsure as to whether the appeal was allowed in part or whether, on proper construction of her determination, she had in fact, dismissed the appeal.  A potential issue arose as to whether the appellant could appeal against the determination.

Facts of the case

The appellant appealed against the decision of the respondent (Secretary of State for the Home Department). The appellant had applied for leave to remain in the UK under the Tier 1 General migrant category of the points-based system. The respondent refused to award the points claimed under the previous earnings category (under Appendix A of the Statement of Changes in the Immigration Rules HC 395 (as amended). The appellant had sought to claim 40 points for previous earnings for the relevant period of assessment (between £35,000 and £39,000). The respondent was also not satisfied that the appellant could be awarded 5 points in respect of UK experience. The respondent refused the application under paragraph 245C (c) of the Immigration Rules.  

In her determination, the Judge stated that it ‘was not reasonably possible to tell the income from the invoices and that she considered that the income proven was £31,848.27, which she said entitled him to 30 points under Appendix A'. The Judge then concluded her determination as above.

Permission to appeal against the decision was granted on 14th December 2010 by Senior Immigration Judge Poole on the basis that there were substantive grounds challenging the assessment of the documentary evidence and the possibility that the appellant's right to appeal against the determination which had been ‘allowed' was restricted.

Conclusion

The Upper Tribunal concluded that the Immigration Judge had not allowed the appeal at all. In order to be able to succeed, the appellant needed to demonstrate that he should be awarded the 40 points for previous earnings and 5 points in respect of UK earnings. The Tribunal held that ‘On any view, it cannot be said that he had won his appeal to some extent, however limited'. Further, it was wrong for the Immigration Judge to allow the appellants appeal simply on the basis that some of the findings were in his favour as those findings did not entitle him to further leave to remain in the UK under the Tier 1 general route. The Immigration Rules provide a certain number of points must be accumulated in order to qualify and therefore, as the appellant had not obtained the requisite points, he did not satisfy the Immigration Rules.

The Tribunal held that upon a true construction of the determination, it was apparent that the appeal was dismissed and the Immigration Judge should have stated this at the end of her determination. Also, there was no question of whether the appellant had the right to appeal upon properly construing the determination. It was held that ‘The error of the Immigration Judge in describing her decision as a decision to allow the appeal to some limited extent could not deprive the Appellant of the right he had (on a true construction of the determination) to appeal against her determination'. The previous determination was set aside and a new decision was re made allowing the appellants appeal against the respondents decision.

April 2011

For further information or for a case specific evaluation, please contact us on 0207 569 3035 or alternatively at info@ergensharif.co.uk .

 

Article Source: http://www.articlesbase.com/immigration-articles/tier1-case-law-and-clarity-of-judges-decision-4531935.html

About the Author

For further information or for a case specific evaluation, please contact us on 0207 569 3035 or alternatively at info@ergensharif.co.uk .

 

Article on Discrimination from Lawrence Law Tat Hung, 羅達雄 :

Author: Lawrence Law

From the office of Lawrence Law Tat Hung, 羅達雄 :

It is important to note that a person will have protection against discrimination under the three identical ordinances only if he/she is discriminated against on the prohibited grounds. There is no protection for discrimination on other grounds, such as age, race or religion. Ilowever, if the discriminator is the government or other public authority such person can arguably rely upon the equality provision (art 22) of the Bill of Rights, which binds the government and public authorities.

Accordingly, unlike other provisions of the ordinances which render unlawful only the prescribed acts, the provisions render unlawful all discriminatory conduct in the performance of government functions and the exercise of government powers.

Lawrence Law Tat Hung, 羅達雄 :

The equality provision provides that all persons are equal under the law and are entitled, without discrimination, to the equal protection of the law. In this respect the law prohibits all discrimination and guarantees to all persons equal and effective protection against discrimination on any ground. Since a person who is being discriminated against on the ground of sex, marital status, pregnancy, disability or family.

Further, art 1(1) of the Bill of Rights stipulates that the rights recognised in the Bill of Rights shall be enjoyed without distinction of any kind (eg race, colour, sex, language, religion, ete). Hence, the government should be encouraged to seriously consider enacting similar discrimination ordinances covering those other grounds in order to give fresh spirit to the equality provision.

One matter I would like addressed is the reason for the failure of the EOC to prescribe, pursuant to the discrimination ordinances, the forms by which a person aggrieved may question the respondent on his/her reasons for doing an unlawful act and the forms by which the respondent may reply to such questions. Such questions and reply are admissible evidence and, if it appears to the court that the respondent deliberately and without reasonable excuse failed to reply within a reasonable.

Useful Links from Lawrence Law Tat Hung, 羅達雄 

http://www.yp.com.hk/iypbusiness_e10/ch/html/all_search/searchresult_all.aspx?entry=home&txtKeyword=lawyer

http://www.yp.com.hk/iypbusiness_e10/en/html/company_search/searchresult_company.aspx?txtKeyword=lawyer

http://barlist.hkba.org/hkba/BarList/411.htm

Article by Lawrence Law Tat Hung, 羅達雄 

Article Source: http://www.articlesbase.com/regulatory-compliance-articles/article-on-discrimination-from-lawrence-law-tat-hung-4768653.html

About the Author

Law, Lawrence T.H. 羅達雄 *

Address:

11/F, 8 Wyndham St,
 
Central, H.K.
 

Tel. No.:

25250221

Fax  No.:

28452441

 

Areas of Practice:

Civil & Criminal/A1/A3/B1/B2/C1/C3/C4/C5/C6/C7/C8/ D1/D2/E2/I1/I3/I4/L1/L2/M1/P1/P2/P5/S1/S2/S3

Quals:

LLB (City U.), PCLL (HKU), LLM (China), LLM (Chinese & Comparative Law)

Call:

HK (1992)

From the office of Lawrence Law Tat Hung, 羅達雄 :

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