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A Staten Island, N.Y., Supreme Court justice has refused to take a custody dispute away from a Family Court judge, even though he disagreed with the standard the judge used in deciding to shift custody of two children from their mother to their father. In a case of first impression, Richmond County Supreme Court Justice Joseph J. Maltese said that Family Court had subject matter jurisdiction over the custody issue. Furthermore, the state Supreme Court justice declined to second-guess Family Court’s treatment of the father’s petition for custody under the “best interests of the children” standard, rather than the more difficult standard usually invoked when changes in custody status are at issue. Maltese ruled in Renzulli v. McElrath, 8138/00, the mother’s lawsuit against Family Court Judge Terrence J. McElrath. The mother sought a writ of prohibition to invalidate the custody decision, and also sought damages, alleging that her civil rights had been violated. The state Supreme Court may issue such a writ of prohibition if it finds that Family Court, a court of specialized and limited jurisdiction, has strayed outside of the boundaries set for it in the New York Constitution and the Family Court Act. But without a finding that the Family Court judge acted in bad faith, out of malice or recklessly, Maltese said, a writ of prohibition would not be granted and the case would be left in Family Court. The New York Supreme Court in September 1996, after granting the parents a divorce, awarded legal custody of two children to their mother Nora Renzulli, who is a lawyer. However, the custody award was not made part of the judgment of divorce. FAMILY COURT In February 1999, the father, Ronald Renzulli, initiated an action in Family Court seeking custody of the couple’s two children. Family Court Judge McElrath assumed jurisdiction and after a fact-finding hearing, awarded temporary custody to Ronald Renzulli and visitation rights to Nora Renzulli. Nora Renzulli then sued Judge McElrath, alleging that the Family Court had wrongfully assumed jurisdiction and wrongfully awarded custody to the father without determining whether a change in circumstances warranted altering the original custody order. Under Family Court Act �651(b), litigants may choose whether to litigate custody disputes in Supreme Court or Family Court, Maltese observed. Maltese pointed out that even if there had been a definitive Supreme Court statement on custody included in the divorce judgment, the Family Court could still have had jurisdiction to enforce the custody arrangement. That would have come under a different section of the Family Court Act, one which authorizes modifications based on changed circumstances. But since there was no custody award in the judgment of divorce, McElrath was free to make his own decision about the best interest of the children, and did not have to use the Family Court Act section on changed circumstances. JURISDICTION AFFIRMED Maltese said he did not agree with McElrath’s approach to the case but he found that Family Court did have a basis for jurisdiction. “[T]his court respectfully disagrees with the Family Court’s rationale of treating the father’s petition for custody as an initial application for custody under FCA �651(b), which only requires a ‘best interests of the children’ standard, rather than a change in custody,” Maltese wrote. Maltese also criticized the Family Court for failing to recognize that the Supreme Court made a decision on custody, even if that decision was left out of the actual judgment of divorce. However, he said that he could not make a finding that the Family Court judge abused his discretion in taking up the case or deciding it without reference to the Supreme Court’s decision. “[T]he Supreme Court is not an appellate court and [it] makes no finding as to whether Family Court abused its discretion in awarding custody of both children to the father,” Maltese said. Nora Renzulli represented herself. Assistant State Attorneys General Carolyn Cairns Olson, June Duffy and August Feitkau appeared on behalf of the defendant, Judge McElrath. The children’s law guardian, Richard D. Katz, opposed the application to bar Family Court jurisdiction. Ronald Renzulli was represented by Norman J. Rosen Previte, Farber & Rosen, in Rego Park, Queens.

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