Q: Hello, I have a question for jurisdiction.
I filed modification of custody case in Family Court+OP.
MY ex husband filed modification of custody case in Supreme Court. I filed to Dismiss his case.
My questions is:
What is the law/rule for the first Court where case is been filed will hold the jurisdiction. Thank you
A:
This asker absolutely needs a lawyer. Parties do not file for custody in Supreme Court unless that filing is for divorce. Then, upon the filing of a motion to consolidate pursuant to CPLR §602, the Supreme Court judge will move the family court matter to the Supreme Court.
As to this asker, she specifies that the opponent is an ex-husband with no other information. He likely has his judgment with him which may or may not provide for Supreme Court's exclusive jurisdiction over enforcement and modification jurisdiction to the exclusion of family court. We just don't know. Depending on what that judgment says, the ex-husband may have concurrent jurisdiction ability to file in Supreme Court, and the judge in the Supreme Court may or may not hear the case and consolidate from the family court.
In cases where there never was a marriage, then the proper action by the Supreme Court judge is to dismiss the custody application and defer to the family court pursuant to its statutory power under Family Court Act Article 6 which provides that the family court has original jurisdiction over non-marital custody cases.
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