Doing What They Do Best, Court System Operates From the Shadows

4-Year-Old Queens Custody Case Shifted to Brooklyn

The New York Law Journal by John Caher  -  January 9, 2012

The unexplained transfer of a long-running and highly volatile custody case from a judge in one borough to a judge in another—without a motion, hearing or formal request to move the case—has added another ember to an already fiery matrimonial dispute.

McAvoy v. Hannigan had been dragging on for more than four years before Supreme Court Justice Sidney F. Strauss in Queens when, just before Thanksgiving, the Office of Court Administration without explanation took the case away from him and sent it to Supreme Court Justice Jeffrey S. Sunshine in Brooklyn. The shift was mandated in an order issued in late November by Justice Fern A. Fisher, deputy chief administrative judge for the New York City courts. Apparently neither party asked for the case to be transferred, and the shift has given the estranged couple, who have been at loggerheads for a decade, one more thing to fight over. The mother, Annemarie McAvoy, an adjunct professor at Fordham University School of Law, former federal prosecutor, one-time candidate for city comptroller and legal commentator for Fox News, said she wants the case to remain with Justice Sunshine. The father, New Jersey real estate investor John Hannigan, wants it back before Justice Strauss in Queens and filed a writ of prohibition in the Appellate Division, Second Department, to get it there. "There was no motion, no hearing, no papers served and that is the part that is extraordinary," said Glenn S. Koopersmith, a matrimonial attorney in Garden City who represents Mr. Hannigan on an Article 78 writ of prohibition. Mr. Koopersmith is among at least eight matrimonial attorneys, many of them members of the prestigious American Academy of Matrimonial Lawyers, who have been involved in this case. "I'm doing this for 35 years and I have never seen anything like this," Mr. Koopersmith said. "Normally, you would have a motion and a chance to oppose. This was done summarily."

David Bookstaver, a spokesman for the OCA, said on Jan. 6 that the case was "assigned to Judge Sunshine because there were extremely serious concerns about the welfare of the child involved in this case." Mr. Bookstaver said that court administrators thought it best to have another judge take a look. His comments marked the first time the OCA had provided an explanation for the shift. "The feeling was that a fresh set of eyes that did not have four years of dealing with the case would be the best way to deal with this matter," Mr. Bookstaver said. "Once Judge Sunshine makes a determination regarding the child's welfare, the case will be sent back to Queens. The intent here was always keeping the child's welfare as the focus." It is unclear whether the case will go back to Justice Strauss. At the center of the tug of war is the couple's 10-year-old son, Chad. Ms. McAvoy and Mr. Hannigan divorced in 2005. Initially, the parents agreed to an arrangement whereby the mother had residential custody and the father shared legal custody, meaning they had joint decision-making authority. But their very different views of Chad's needs quickly led to a conflict. Ms. McAvoy believes the boy is autistic, or borderline autistic, and suffers from neuro-behavioral issues. In an interview, she said that she had Chad in therapy 40 hours a week when he was 18 months old. "He had issues," she said. "He still has neurological issues." Mr. Hannigan's attorney paints a different picture. "The mother basically saw the child through very dark glasses and was insistent to label this child autistic or being on the autistic spectrum," said Audrey M. Sager of Sager & Gellerman in Forest Hills, counsel for Mr. Hannigan in the divorce proceedings. "The father, however, did not see the child that way at all and the professionals that he dealt with did not corroborate the mother's viewpoint. The mother had not agreed with a single neutral professional opinion." Ms. Sager said the disagreement reached a tipping point when Chad entered kindergarten and the mother insisted on a restrictive placement that the father opposed. In early 2007, without a hearing, Justice Strauss shifted residential custody from Ms. McAvoy to Mr. Hannigan. A few months later, the Second Department affirmed Justice Strauss and held that the evidence before him was sufficient to "reach a sound conclusion that, under the circumstances of this case, it was in the child's best interest to award temporary residential custody to the father until such time as a hearing could be conducted on the issue of permanent custody." The Second Department in its terse decision (41 AD3d 791, 2007) did not say what that evidence was, although there was some suggestion, according to both sides of the dispute, that Chad was underweight while living with Ms. McAvoy and that his teeth were unhealthy. The panel sent the matter back to Justice Strauss for a trial on permanent custody. That trial has consumed about 30 trial days over the four-year duration of the litigation.

Multiple Counsel

Ms. Sager blames the slow progress on the fact that Ms. McAvoy has gone through six lawyers—Steven D. Kommor, Alexander Potruch, Stephen Gassman, Raoul Felder, Robert Hiltzik and Edward Hayes—before going pro se. Ms. Sager also said that, along the way, there were unfounded allegations of sexual abuse against the father and an unsuccessful motion by Ms. McAvoy under the Uniform Child Custody Jurisdiction and Enforcement Act to transfer the case to New Jersey. "Every time, we had another set of lawyers and they needed time to prepare," Ms. Sager said. Ms. McAvoy said in an interview that she is not to blame for the delay and wants the case to end. She said she accumulated more than $1 million in legal bills before running out of money and going pro se. "This is not an issue of switching lawyers," Ms. McAvoy said. "When I switched lawyers there was maybe a couple weeks' delay, if that. I made sure that there was no delay because my interest was in getting Chad back." Now, an imminent risk hearing is taking place before Justice Sunshine and is slated to continue on Jan. 9 and 10 in Brooklyn. Ms. McAvoy contends she brought her concerns about Chad before Justice Strauss more than a year ago. "I raised on the record with the judge that [Chad] was talking about killing himself, and the judge did nothing," Ms. McAvoy said. "In September, my son was hospitalized for hurting himself and having suicidal thoughts, as well as homicidal thoughts toward his father. The thought of killing himself always revolves around he would rather be dead than continue living with his father. He feels that if he has to do that, he doesn't want to live."  Ms. Sager said neutral professionals dispute those claims and insists Chad is doing fine with his father—performing well in school, making friends, getting involved in extra-curricular activities.

Once Justice Sunshine concludes the imminent risk hearing in Brooklyn, the matter will go back to Queens, according to Mr. Bookstaver. Ms. Sager said the Nov. 23 order transferring the matter out of Queens caught her completely by surprise. "There was no motion, no application, nothing, and all of a sudden a case was being moved to a county with improper venue, from a sitting judge where there has been no mistrial and no recusal after 32 days of trial," Ms. Sager said. "I want a written decision and I want to know how it happened. My client wants this case adjudicated fairly and adjudicated quickly." Ms. McAvoy said she had made clear her displeasure with Justice Strauss, but said she did not seek transfer of the case. "I have been pretty vocal about my dissatisfaction with how this thing is moving, so it [the transfer] may have come through that," Ms. McAvoy said. "The judge on the record said we would be submitting post-trial briefs in 2014, so there was no end in sight. Temporary custody shouldn't be four and a half years. But I have not had any contact with any of the administrative judges." Ms. McAvoy also noted that Justice Strauss posted a question on the International Institute of Judaic Law website asking whether Jewish law supports or refutes the New York legal concept that custody determinations should be based on the best interests of the child. On the website (judaiclaw.org/Questions_Answers_010.html), a rabbi responded that under Talmudic law children under 6 should be placed with the mother and boys over 6 are to be placed with the father and that the welfare of the child is not the primary consideration. Chad was 6 when custody was shifted to the father, Ms. McAvoy said. Justice Strauss was unavailable for comment.  John Caher can be contacted at jcaher@alm.com.