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Anil and Cary lost their mother and struggled to keep their stability and home with their Aunt

Anil* and Cary* were 8 and 3 years old when their mother who was in her late twenties died of cancer.  She was a native of Barbados, and many of her relatives continued to live there.  While she was ill, members of her church in Brooklyn were deeply involved in providing financial help and hands-on assistance in the daily child care for the children.  The father was not involved.  When the mother was in the throes of her final illness, the father of the children disappeared and the children nor the relatives knew his whereabouts. The father learned of the mother’s death and returned to New York, but not before the mother’s sister, in compliance with the mother’s wishes, had taken the children to Barbados to live with her. The father was granted an order of custody in New York, but never sought to enforce it, while the aunt was awarded an order of custody from a Barbadian court. These orders were issued within weeks of one another, but neither court was aware of the order of the other court.

After the children had lived in Barbados almost five years, Cary was struck by a car and seriously injured. When she was flown to New York for specialized medical care, the father learned of her plight through an article in the newspaper, and he filed proceedings to enforce his order of custody. Both children had a strong desire to remain living with the aunt, although they wished to visit their father. The father did not visit Cary regularly in the hospital, although she was confined there for half a year, while the aunt visited daily and often remained overnight. Also, the father agreed to pay Anil’s airfare to visit from Barbados during the summer, he never did so, and the aunt financed Annie’s trip to enable him to visit the father. Upon Cary’s discharge from the hospital, the New York judge gave the aunt a temporary order of custody.

The father sought a stay of the temporary custody order from the Appellate Division, which was denied. The CLC social workers assigned to this case visited Cary in the hospital, interviewed her doctors and her hospital social worker, and gathered information about her medical problems. Our client’s position was that she wanted to remain with her Aunt. CLC’s social worker wrote an affidavit that was attached to CLC’s Affirmation in Opposition in the Appellate Division. Another motion was submitted by CLC when the father, acting without his attorney’s knowledge. CLC secured an order from a judge, who was not familiar with the case that prevented Anil’s return to Barbados following his visit.

At trial, the father contended that the aunt had kidnapped the children, acted in defiance of the New York order of custody and filed for custody in Barbados only after learning that he had a prior order. The aunt’s attorney proved that was not the case.  Cary and Anil were permitted to return to Barbados and the father was granted visitation. 

*Client's names have been changed.



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