Rader v. Rader

Richard S. Usen (Edward McGuinness of counsel), for Erie County Department of Social Services.

MARJORIE C. MIX, J. By petition sworn to on November 9, 1999, Dennis P. Rader alleged, inter alia, that respondent Tracy L. Rader assaulted Shane Spencer, date of birth December 21, 1986, and sought an order of protection on behalf of Shane requiring the respondent, Shane's mother, to stay away from the child. Although the petition alleges that Shane is "Petitioner's son" and that the alleged assaultive conduct occurred following Shane's visitation with "his father," these parties are well known to the court, and petitioner's counsel has several times acknowledged in open court as well as in petitioner's most recent papers that Shane is, in fact, the petitioner's stepson. By way of background, this most recent family offense petition closely follows an acrimonious custody dispute which was eventually resolved on the consent of the parties, with petitioner assuming primary custody of the parties' three biological children, ages three, eight, and nine, and respondent mother retaining custody of Shane, age 12, who is not the petitioner's child. Shane's father, named as a party and noticed, resides in Germany and did not appear. The parties also agreed, inter alia, that Shane would have visitation with petitioner and his siblings on alternate weekends. That order, entered on consent of the parties, has since been appealed by respondent Tracy L. Rader. (But see, e.g., Goodman v Goodman, 150 AD2d 636 [2d Dept 1989].) On November 10, 1999, the court dismissed the instant petition, further ordering that the matter be referred to Child Protection Services pursuant to Family Court Act § 1034 regarding the possible neglect of Shane. The court explained to the petitioner that should the Department of Social Services, as the result of its investigation, petition to have Shane adjudged an abused or neglected child, and if the court then determined the child should be removed from the respondent mother's home, petitioner might then be considered as a possible Family Court Act § 1017 placement resource. However, the petitioner was also admonished, in substance, that he would not be successful in any strategy to use the mechanism of a peace order to disrupt respondent's care and custody of her child. The petition was then dismissed on the ground that the responsibility to petition for Shane's removal from his parent's home if the child is at risk of harm. Clearly, as between parents, a petition for a peace order on behalf of a child may result in the eviction of the offending parent from the household, or occasion the transfer of residential custody to the nonoffending parent. Here, however, the petitioner seeks to employ the mechanism of a removal order to necessarily effect the transfer of custody to a nonparent, a result which may be obtained only in the context of an article 10 petition or, under extraordinary circumstances, in a properly initiated custody proceeding. (See, Matter of Bennett v Jeffreys, 40 NY2d 543 [1976].) To indiscriminately permit the origination of removal proceedings against custodial parents by persons more remotely related to children by consanguinity or affinity would subvert the careful design of article 10, and would be contrary to the well-settled rationale of Bennett v Jeffreys (supra), and its progeny. Accordingly, this court holds that article 8 of the Family Court Act does not authorize a person who is neither the child's parent nor lawful custodian to originate and maintain a proceeding to remove the child from the home of a custodial parent. As a matter of law, the court will therefore adhere to its original decision to dismiss the instant petition, having ordered the Department of Social Services to investigate the allegations made therein. Wherefore, it is ordered that petitioner's motion for leave to reargue is denied, with prejudice.