New Judge Sets March Trial Date for Protracted Custody Dispute

New Judge Sets March Trial Date for Protracted Custody Dispute
The New York Law Journal by John Caher  -  March 1, 2012

More than four years after the contentious custody trial in McAvoy v. Hannigan began, the latest judge assigned to the case has vacated all orders of his predecessors and set a trial date of March 27.  Supreme Court Justice Rudolph E. Greco Jr. of Queens said that once the case that has already been before two judges in different counties gets under way, it will continue "for as many consecutive days thereafter as necessary to conclude."  However, the trial should be short, as Justice Greco has barred the testimony of anyone other than that of a court-appointed forensic psychologist and limited two attorneys to two hours each of summations, plus one hour for the attorney for the child.  Annemarie McAvoy, the mother of the 10-year-old Chad, said she has been precluded from offering any witnesses and her ex-husband, John Hannigan, whose case was largely presented before different judges and is on the record, was barred from offering additional witnesses.  "I have not put anything on in my case yet," said Ms. McAvoy, who is pro se. "The judge ruled that I am completely precluded from putting on any witnesses at all."  Ms. McAvoy has always maintained that her son is autistic or borderline autistic and needs special services. Mr. Hannigan and various experts dispute that diagnosis.  The father's attorney, Audrey M. Sager of Sager & Gellerman in Forest Hills, said her client would have liked an opportunity to testify.  "My client wants this done and done correctly," she said. "Had this case not been summarily, and without basis, transferred, it would be ready for adjudication. But that is not what happened."  Chad initially lived with his mother, an adjunct professor at Fordham University School of Law and media legal commentator.  Ms. McAvoy had residential custody, but 4½ years ago Supreme Court Justice Sidney Strauss in Queens  ordered a "temporary" change of custody and placed the boy with his father in New Jersey. The parties have been battling over custody ever since, and in recent months the case has been bounced from court to court.

Late last year, without explanation and without a motion or formal request from any of the parties, the Office of Court Administration took the case away from Justice Strauss and gave it to Justice Jeffrey S. Sunshine in Brooklyn.  Later, OCA said it wanted a "fresh set of eyes" to look at the case, but its unusual action raised questions in the matrimonial bar and among judges as to whether court administrators had the authority to move a case to another county on their own initiative.  Retired Supreme Court Justice Jacqueline W. Silbermann, who served as statewide administrative judge for matrimonial matters and now practices matrimonial law with Blank Rome in Manhattan, said judges were upset when OCA took the case away from Justice Strauss.  However, Ms. Silbermann said that while such actions should not be done routinely, it may have been warranted in the McAvoy case over concerns that Chad was suicidal.  "The judges were upset, I know that," Ms. Silbermann said. "They don't like it and I don't blame them for not liking it. It shouldn't be a practice, but I don't think it is a practice. I think it was sui generis. I don't think they've done it in the past. I don't think they'll do it very quickly in the future."

In January, Justice Sunshine held an imminent risk hearing to determine if Chad, who had suggested he would kill himself if he had to continue living with his father, was in danger. Justice Sunshine concluded that the boy's safety was not in jeopardy and left Chad in the temporary custody of his father in New Jersey.  OCA then transferred the case back to Queens and Justice Strauss. But Justice Strauss immediately stepped aside, saying his calendar is booked and he does not have time for McAvoy v. Hannigan, 9927-02.  The case was then shifted to Justice Greco, who on Feb. 10 vacated all orders of Justice Strauss and Justice Sunshine, in courts of coordinate jurisdiction, and said it is time to put this matter to rest.  "Like all the wars fought in God's name, this matter drags on for a misinterpreted goal: 'the good of the child,'" Justice Greco wrote in an order. "There is no place in child custody for pyrrhic victories. In their zeal to prevail the combatants have disregarded the terrible toll their child is paying. This must stop."  After the Feb. 10 hearing, Justice Greco set a trial date of March 5 and directed Ms. Sager to get an adjournment on another trial she had scheduled the same day before Justice Pam Jackman-Brown in Queens (See Profile).  "This takes priority. This is my priority, now, right now," Justice Greco said, according to the transcript.  However, on Feb. 28, after barring any additional witness testimony, Justice Greco delayed the matter until March 27 to give the forensic psychologist time to re-interview the child and parents, Ms. McAvoy said.  "They took my child without a hearing and then have a hearing where they allow my ex to put on his case for more than four years and then, now when we reach the point where I should be able to put on my case, they say, 'We don't need it,'" Ms. McAvoy said. "I can't even testify. You really wonder how this can happen in America."  Ms. Sager said Mr. Hannigan, who has recently been hospitalized for a methicillin-resistant staph infection (MRSA), just wants the case to come to an end.  "I believe the judge is doing what he feels is in the best interest of the child, and the best thing he can do for the child is to get it over with quickly," Ms. Sager said. "We need to get this over so my client and the child get some rest from this litigation."  John Caher can be contacted at jcaher@alm.com.


CLICK HERE TO SEE BACKGROUND STORY: Doing What They Do Best, Court System Operates From the Shadows  -  4-Year-Old Queens Custody Case Shifter to Brooklyn