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FAMILY COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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JOHN DOE APPLICATION FOR JUDICIAL ACTION
Petitioner, Docket No.v-19611/98
-against-
JANE SMITH
Respondent.
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TO THE FAMILY COURT HON. JOSEPH M. LAURIA
The Undersigned respectfully shows that:
1) Applicant is the PETITIONER in the above named case.
2) On or about March, 1999 the following occurred:
This court ordered from the bench that Respondent send me pictures of my son, a request that was on-going for almost a year. Respondent did not timely do so, and in fact, her counsel threatened not to do so. For the past year, I have been denied by Respondent any contact with my son. On January 11, 1999 this Court issued an Order of Filiation to which I need my rights enforced immediately.
3) That since the occurrence these facts occurred:
I have been denied any contact with my son since his birth over a year ago.
4) That by reason of this petition I respectfully request that:
(State relief requested) The relief in the attached Order to Show Cause be granted.
5) No previous application has been made to any court or judge for the relief requested (except):
NONE.
WHEREFORE, your applicant prays that the relief requested be granted in record with the provisions of the Family Court Act.
Dated: April 11,1999 __________________________________
APPLI CANT
VERIFICATION
State of New York)
)SS.:
County of Kings )
_________________________above named, being duly sworn, deposes and says that he is the petitioner in the within action; that he has read the contents of the foregoing petition; and that the same is true to his own knowledge.
Sworn to before me
__________________ 19__ ____________________________
APPLICANT
____________________
COURT ASSISTANT
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FAMILY COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
____________________________
In the Matter of a Proceeding for Visitation )
under Article 6 of the Family Court Act )
JOHN DOE, ) ORDER TO SHOW CAUSE
Petitioner, ) Docket No. V-19611/98
against )
JANE SMITH, )
Respondent. ) Hon. Joseph M. Lauria
___________________________________
Upon the petition of JOHN DOE verified the 11th day of April, 1999, annexed hereto, and the Affirmation of his counsel in the above entitled action, and upon all of the pleadings, exhibits and proceedings heretofore had herein, it is
ORDERED that Respondent show cause before this Court at 283 Adams Street, Brooklyn, New York, on the _23___ day of April, 1999, at _9__o'clock in the afternoon of that day, or as soon thereafter as the parties can be heard, why an order should not be made:
(a) allowing interim visitation during the weekend of May 7-10, 1999 when Petitioner shall be
present in State to attend the May 10, 1999 hearing in this court;
(b) pursuant to Family Court Act sec. 641 for this Court to have original jurisdiction concurrent with the Surrogate's Court regarding Defendant's Second Parent Petition for Adoption
filed with the Family Court, County of Kings on or about July 19, 1998; and
(c) in the interests of judicial economy, add to the child's birth certificate the name of Petitioner as the Father and correct the child's surname on said birth certificate to reflect Petitioner's name pursuant to the January 11, 1999 Order of Filiation issued by this Court. and why such other and further relief should not be granted as the Court may determine, and it is further
ORDERED that service by fax of a copy of this Order together with the papers upon which it is granted upon ______ on or before the 19th day of April, 1999, be deemed sufficient service.
Dated: April 15, 1999
Enter, ____________________________________
F.C.J.
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FAMILY COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
__________________________________ Docket No. V-19611/98
JOHN DOE ) AFFIDAVIT SUPPORTING ORDER TO
Petitioner, )
-against- ) SHOW CAUSE
JANE SMITH, ) Index Purchase Date: 08/27/98
Respondent. ) Assigned to: Hon. Joseph M. Lauria
___________________________________
STATE OF NEW YORK ) Oral Argument Requested
) ss
COUNTY OF KINGS )
JOHN DOE being duly sworn, deposes and says:
1. I am the Petitioner and Father in the above entitled action and respectfully submit this affidavit in support of my Motion: pursuant to Family Court Act section 641 that this Court have original jurisdiction concurrent with the Surrogate's Court regarding Respondent's Second Parent Petition for Adoption filed with the Family Court or Surrogate's Court, County of Kings on or about July 19, 1998; a surname change and my name reflected on the birth certificate and for interim visitation.
2. The parties and issues involved in the Petition for Visitation filed in this Court are the same as those in the Second Parent Petition for Adoption filed by Respondent in, what I understand, was the Kings County Surrogate's Court, (See Second Parent Petition for Adoption annexed to my Petition for Visitation in this Court's file).
3. The issues in the Second Parent Petition for Adoption are interrelated to my Petition for Visitation and should be resolved by one Court familiar with the parties and issues.
4. As to my request for the name changes to the birth certificate, as this court issued the filiation order, in the interests of judicial economy, I ask this court to issue an order to reflect my surname on said birth certificate as well as reflect my name as the Father thereon so I may expediently have the Clerk issue a corrected birth certificate.
5. Lastly, as Respondent has refused any contact between myself and my son. It has been well over a year since my son's birth that I have been denied any contact despite my repeated efforts for over a year. I ask this court to order an interim visitation during the period of May 7-10, 1999 so I may see my son as Respondent refuses any voluntary contact.
WHEREFORE, it is respectfully submitted that this Court, pursuant to Family Court Act section 64, take original jurisdiction over the Second Parent Petition for Adoption filed in this County, as far as I know, in the Surrogate's Court, order a modification of the birth certificate pursuant to this Court's Order of Filiation and allow me interim visitation during May 7-10, 1999 and for such other and further relief as this Court deems just and proper.
_________________________________________
Sworn to and Subscribed JOHN DOE
before me this 11TH day of April, 1999
_____________________
NOTARY PUBLIC
_____________________________________________________________________________________
FAMILY COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
__________________________________ Docket No. V-19611/98
JOHN DOE ) AFFIRMATION SUPPORTING ORDER TO
) TO SHOW CAUSE
Petitioner, )
-against- )
)
JANE SMITH, ) Index Purchase Date: 08/27/98
Respondent. ) Assigned to: Hon. Joseph M. Lauria
___________________________________ )
STATE OF NEW YORK )
) ss.:
COUNTY OF KINGS )
SUSAN CHANA LASK, an attorney duly admitted to practice law before the courts of the State of New York, with offices located at 853 Broadway, Suite 1516, New York, New York, 10003, affirms the following under penalties of perjury:
1. I am the attorney for Petitioner in the above entitled action and am fully familiar with the facts and circumstances set forth herein. My knowledge herein was gained from documents and information provided by Plaintiff and all the papers and pleadings.
2. I submit this Affirmation in support of Petitioner's Motion Pursuant to Family Court Act section 641 that this Court have original jurisdiction concurrent with the Surrogate's Court regarding Respondent's Second Parent Petition for Adoption filed with the Family Court or Surrogate's Court, County of Kings on or about July 19, 1998; a surname change and Petitioner's name reflected on the birth certificate and for interim visitation.
3. The parties and issues involved in the Petition for Visitation filed in this Court are the same as those in the Second Parent Petition for Adoption filed by Respondent in what I understand was the Kings County Surrogate's Court, although it lists Family Court on its caption (See Second Parent Petition for Adoption annexed to the Petition for Visitation in this Court's file).
4. Logically, both petitions should be resolved by this Court as it would be more expedient, would avoid duplicating the issues herein and would prevent wasting the Court's and the parties' time.
5. This Court has already assigned Court Appointed Attorney D. Jill Green who is familiar with the issues involved, this Court already determined Petitioner is the biological Father as well as the court Appointed Attorney has an understanding of this case as well as interviewed the parties, this Court has had conferences and will continue to conference the issues herein and, if the parties proceed with forensics, then this Court will also have a firm grasp on the forensic issue; all of which can be applied and are applicable to the Second Parent Petition for Adoption.
6. It would not be of any prejudice to any party herein to have both petitions before this Court; in fact, it would benefit all parties involved, including the Court, to have these intertwined issues in the Petition for Visitation and Second Parent Petition for Adoption resolved in and by one Court.
7. As to an order correcting the Birth Certificate, I defer to the Family Court decision of MARIA E v. ANTHONY E.,125 Misc.2d 933, 481 N.Y.S.2d 227(1984) wherein that court held:
" It is this Court's opinion, however, that the authority to entertain an application for
a name change when brought in conjunction with a paternity proceeding should be
vested in the Family Court. The absence of such legislation seems to promote duplicity
of litigation, is judicially uneconomical and is without any substantive rationale."
As this case involves visitation and this Court was the Court that determined and ordered the filiation of Petitioner to the child, then to avoid duplicity and promote judicial economy, we respectfully request the birth certificate be corrected by an order of this Court.
8. Lastly, Petitioner, as Father, has every right to see and/or contact his son and has been attempting to do so for well over a year. Respondent has stonewalled his every effort and voluntary attempts between the parties is futile.
9. In fact, since the child's birth one year ago, it has been Respondent's pattern to block any relationship Petitioner tried to facilitate with his son. It has been over a year since Petitioner has seen his son and his birthday has just past.
10. This Court's interim relief is requested and required so that Petitioner may have at least one visit with his son during the period May 7-10, 1999.
WHEREFORE, it is respectfully submitted that this Court, pursuant to Family Court Act section 64, take original jurisdiction over the Second Parent Petition for Adoption filed in this County, as far as we know, in the Surrogate's Court, issue and order modifying the birth certificate, allow an interim visit with the child and for such other and further relief as this Court deems just and proper.
Dated: New York, New York
April 15, 1999 Yours, etc.,
____________________________________________
Susan Chana Lask, Esq.
Attorney for Plaintiff
853 Broadway, Suite 1516
New York, NY 10003
(212) 358-5762