Lhotan v. D'Elia, 415 F. Supp. 826 (E.D.N.Y. 1976)

Marcia Robinson Lowry, New York City, for petitioners.

James M. Catterson, Jr., County Atty. of Nassau County, Mineola, N. Y., for respondent, by James N. Gallagher, Deputy County Atty., Mineola, N. Y., of counsel.

Seligman & Stein, Mineola, N. Y., for natural parent.

BRUCHHAUSEN, Senior District Judge.

The petitioners apply to this Court for a Writ of Habeas Corpus whereby they seek an order, directing the respondent to place Cheryl and Patricia Wallace as foster children in the home of the petitioners, Dorothy and George Lhotan, or, in the alternative, directing respondent to discharge the children from custody so that they may live with the petitioners.

The respondent moves to dismiss the petition upon the following grounds, i. e.

1. The Federal courts have consistently rejected Federal jurisdiction over the entire area of domestic relations.

2. This proceeding is barred by res adjudicata.

In Hernstadt v. Hernstadt, 373 F.2d 316, Circuit 2, the Court stated:

"Since the very early dicta In re Burrus, 136 U.S. 586, 10 S. Ct. 850, 34 L. Ed. 500 * * * it has been been uniformly held that federal courts do not adjudicate cases involving the custody of minors and, a fortiori, rights of visitation."

In State of Ohio, ex rel. Popovici v. Agler, 280 U.S. 379, 50 S. Ct. 154, 74 L. Ed. 489, the Court stated:

"It has been understood that, `the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.'"

In Lombard v. Board of Education of City of New York, 502 F.2d 631, 636, 2 Cir., the Court stated:

*827 "Of course, where a constitutional issue is actually raised in the state court, * * the litigant has made his choice and may not have two bites of the cherry."

In Newman v. Board of Education of the City School District of New York, 508 F.2d 277, 278, 2 Cir., certiorari denied by the United States Supreme Court, the court stated:

"We believe that Lombard (supra) controls both the res adjudicata and due process questions."

The petitioners present claims have been presented and adjudicated in the Supreme Court of the State of New York, the Appellate Division, Second Department, Wallace v. Lhotan, 51 A.D.2d 252, 380 N.Y.S.2d 250 and the New York State Court of Appeals.

The petitioners, the Lhotans, in their brief, submitted to the New York State Court of Appeals, set forth, in part, viz:

"Respondents-Appellants (the Lhotans) have an appeal as of right, pursuant to C.P.L.R. § 5601(b) (1) because a constitutional question was directly involved in the decisions below.

"A. A Constitutional Question was directly involved in the decisions below. "The decision by the Appellate Division, Second Department, dated February 23, 1976, affirmed two decisions by the Nassau County Supreme Court, dated June 27, 1975, and October 27, 1975. An analysis of both the Supreme Court decisions and the Appellate Division opinion demonstrates that the courts applied a standard which violates the due process clause of the Fourteenth Amendment."

The New York State Court of Appeals by order, dated April 6, 1976, dismissed the petitioners appeal.

1. Federal courts do not adjudicate cases involving the custody of minors or right of visitation. That is the function of the States.

2. All of the issues herein, including due process, have been adjudicated by the State courts.

Upon due deliberation, it is

ORDERED that the petition be and it is hereby dismissed.