Decisions of Interest

However, finding that the mother here had said and done things 'that seriously compromise her credibility,' the court found the fugitive disentitlement doctrine to be an appropriate mechanism. This case apparently marks the first time the principle has been used in a New York civil case, but comes on the heels of a landmark New Jersey Supreme Court ruling in a similar matter, Matsumoto v. Matsumoto, 171 N.J. 2002.

Back Child Support Not Owed to Mother

A father who owed back child support was excused from paying the amount in arrears due to the mother's having absconded with the children to her native Turkey, where she and the children cannot now be located. Cruey v. Giray, N.Y.L.J. 1/13/03 (Sup. Ct., Bronx Cty, Jurow, J.).

The Supreme Court, Bronx County, had entered a visitation order Dec. 20, 1996, granting the respondent/father alternate weekend and holiday visitation with his children. He was also ordered to pay $2,000 per month for their support. In July 1997, the mother took the children to Turkey and did not return. Prior to their departure, the father owed the mother $18,500 in child-support arrears. Since then, arrears of $12,790 have accrued, plus respondent has paid the Support Collection Unit $8,400 in child support.

The father petitioned the court to seek suspension of child support and vacatur of arrears on the grounds that since 1997, the mother had willfully and unlawfully prevented him from exercising his court-ordered visitation rights. The court stated that although Family Court Act ' 451 and Dom. Rel. Law ' 241 “expressly prohibit the cancellation of pre-application arrears, this court finds that under the extreme and unique circumstances of this case, to require the respondent to pay the arrears that accrued subsequent to the mother's disappearance with the children in July of 1997 would constitute a grievous injustice.” Therefore, the arrears accrued since the family's departure to Turkey were vacated and the amount paid to the Support Collection Unit was ordered returned to respondent. The court declined, however, to cancel the arrears that accumulated before the family's departure to Turkey, noting that nonpayment of child support might have been one cause for their flight. The respondent was ordered to pay this amount but was informed that should the money remain unclaimed by the mother after an unstated reasonable amount of time, he could petition the court for its return.

Fugitive Doctrine Applied to Mother Who Fled with Child

In what has been referred to as 'an extraordinary application of the fugitive disentitlement doctrine to a family court matter,' the New York Family Court, Albany County, has ruled that a mother who absconded with her child has no right to seek relief from an order awarding temporary custody to the putative father. Peppin v. Lewis, P-8298-01 (N.Y. Fam. Ct., Albany Cty., 12/2/02).

The case involves a mother who has persistently frustrated the court's attempt to address paternity and custody issues raised more than a year ago by the apparent father. The fugitive disentitlement doctrine, based on the principle that a person may not rely on the judicial system for relief when he or she is evading the authority of that system, has long been applied in criminal law; it typically arises when a convicted fugitive seeks to appeal a criminal conviction.

However, finding that the mother here had said and done things 'that seriously compromise her credibility,' the court found the fugitive disentitlement doctrine to be an appropriate mechanism. This case apparently marks the first time the principle has been used in a New York civil case, but comes on the heels of a landmark New Jersey Supreme Court ruling in a similar matter, Matsumoto v. Matsumoto , 171 N.J. 2002.

Back Child Support Not Owed to Mother

A father who owed back child support was excused from paying the amount in arrears due to the mother's having absconded with the children to her native Turkey, where she and the children cannot now be located. Cruey v. Giray, N.Y.L.J. 1/13/03 (Sup. Ct., Bronx Cty, Jurow, J.).

The Supreme Court, Bronx County, had entered a visitation order Dec. 20, 1996, granting the respondent/father alternate weekend and holiday visitation with his children. He was also ordered to pay $2,000 per month for their support. In July 1997, the mother took the children to Turkey and did not return. Prior to their departure, the father owed the mother $18,500 in child-support arrears. Since then, arrears of $12,790 have accrued, plus respondent has paid the Support Collection Unit $8,400 in child support.

The father petitioned the court to seek suspension of child support and vacatur of arrears on the grounds that since 1997, the mother had willfully and unlawfully prevented him from exercising his court-ordered visitation rights. The court stated that although Family Court Act ' 451 and Dom. Rel. Law ' 241 “expressly prohibit the cancellation of pre-application arrears, this court finds that under the extreme and unique circumstances of this case, to require the respondent to pay the arrears that accrued subsequent to the mother's disappearance with the children in July of 1997 would constitute a grievous injustice.” Therefore, the arrears accrued since the family's departure to Turkey were vacated and the amount paid to the Support Collection Unit was ordered returned to respondent. The court declined, however, to cancel the arrears that accumulated before the family's departure to Turkey, noting that nonpayment of child support might have been one cause for their flight. The respondent was ordered to pay this amount but was informed that should the money remain unclaimed by the mother after an unstated reasonable amount of time, he could petition the court for its return.