Matter of Anthony McK. v Dawn M.

[*1] Matter of Anthony McK. v Dawn M. 2009 NY Slip Op 52820(U) Decided on November 12, 2009 Family Court, Kings County Hepner, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 12, 2009
Family Court, Kings County

In the Matter of a proceeding for custody of a child pursuant to Article VI of the Family Court Act, Anthony McK., Petitioner,

against

Dawn M., Respondent.



V-XX



Anthony McK., Petitioner pro se

611 West Naomi Street

Philadelphia, Pennsylvania 19144-3710

Harold A. Mayerson, Esq., for the Respondent

by Sophie Jacobi, Esq., Of Counsel

Mayerson, Stutman, Abramowitz & Royer, LLP

292 Madison Avenue, 18th Floor

New York, New York 10017

Martha Schneiderman, Esq., for the Child

The Children's Law Center

44 Court Street, 11th Floor

Brooklyn, New York 11201

Paula J. Hepner, J.

On October 1, 2009, the Respondent mother filed a Notice of Cross-Motion seeking an order from this court "authorizing the US Department of State to issue a passport to [her daughter] without the Petitioner father's consent and authorizing [her] to travel with [the child] outside of the USA." The Respondent explains her daughter was unable to participate in a school trip in June of this year that was part of a scholarship she won because of her academic achievement. The Respondent alleges she sent a passport consent form to the Petitioner on May 22, 2009 for his signature but on June 1, 2009, he declined to sign the papers. On June 3, 2009 the Respondent submitted all the necessary papers to the State Department to obtain a passport for her daughter but learned on June 8, 2009 that they did not accept her paperwork because she [*2]"only has a temporary order of custody." On June 30, 2009 the Respondent received a letter from the US Department of State informing her that her daughter's name "was entered into the Children's Passport Issuance Alert Program at the request of the Petitioner."

The Petitioner objects to the relief requested claiming that this court "does not have any jurisdiction over passport matters as the issuance of a passport is strictly a federal matter" and that "the separation of powers doctrine bars this Court from ordering the Secretary of State to issue a passport" to his daughter. The Petitioner contends that the Respondent must exhaust her administrative remedies (citing 22 CFR §§ 51.28) before a passport may be issued. The Petitioner admits that he filed a request with the State Department to enter his daughter's name in the children's Passport Issuance Alert Program on March 24, 2009 and had his attorney write a letter to the State Department's Office of Children's Issues "demanding that all passport applications be denied." On October 14, 2009 the Petitioner's attorney wrote to the Department of State to "demand a full evidentiary hearing...before any passport is issued." The Petitioner disputes that his daughter is enrolled in the Prep for Prep program, contending that she "is still in the testing for admission phase [and] until she has been admitted to academic private school placement program, [she] is not eligible for any international living experiences, [and in any event] the international living components of the program are for high school students, not 11-12 year olds." In his "Response to the Lawyer's Reply Affirmation in Opposition," the Petitioner contends that the Respondent is a flight risk because she "unlawfully fled to New York" in violation of two orders of the Philadelphia Family Court.

This Court, having examined the motion papers and affidavits in support and in opposition thereto, and upon the motion having been marked submitted and oral argument having been dispensed with,

NOW, on motion of the Respondent, the Court finds that:

The provisions applicable to the issuance of a passport to a minor are found at Title 22 of the Code of Federal Regulations Part 51 [hereinafter "CFR"]. Under the statutory scheme, the authority to adjudicate applications and issue passports resides with a passport authorizing officer [22 CFR §51.5]. Unless excused by a senior passport authorizing officer, minors under the age of sixteen are required to appear in person when applying for a passport [22 CFR §51.28(a)(1)]. Both parents are required to execute the application on behalf of a minor under the age of sixteen when applying for a passport for the first time and provide documentary proof of parentage [22 CFR 51.28(a)(2)]. One parent may execute a passport application for a child if s/he provides "documentary evidence that such person...has sole custody of the minor" in the form of "an order of a court of competent jurisdiction granting sole legal custody to the applying parent containing no travel restrictions inconsistent with the issuance of the passport, or specifically authorizing the applying parent to obtain a passport for the minor, regardless of custodial arrangements; or specifically authorizing the travel of the minor with the applying parent or legal guardian" [22 CFR §51.28(a)(3)(ii)(E)]. Before a passport is issued, the parent of a minor may file objections "so long as the objecting party provides sufficient documentation of his or her custodial rights or [*3]other authority to object" [22 CFR §51.28(c)(1)].

The "administrative remedies" to which the Petitioner refers, are found at 22 CFR § 51.70-74 and become operative once the Department of State has refused to issue a passport, not before.[FN1]

There are three compelling reasons to grant the Respondent's application to obtain a passport for her daughter. First, the parties' child attends a school that is known for its academic rigor and talent classes. The Respondent sought this passport in June so that the child could travel to England on a scholarship she won this past summer with her school group. If the parties' child is accepted into the "Prep for Prep" program, the child may have the unique opportunity to travel as the "Prep for Prep" program identifies New York City's most promising students of color and offers them an array of Leadership Development Opportunities to broaden the students' aspirations and awareness of life's possibilities. Every summer a select group of high school juniors travel abroad to experience new cultures, learn languages, and perform community service." Even if this child is not admitted to Prep for Prep, the Respondent is desirous of traveling abroad with this child and her family. Without a passport the child will miss out on these terrific opportunities.

Second, the Respondent has been a resident of New York since 2003 and is gainfully employed in New York City. The Respondent is the biological mother of the subject child and has been the temporary custodian of the child since 2000. She has provided a stable living situation for the child over the past nine years. She is married and has a younger child who also attends school in New York City. Her extended family resides in New York. The Petitioner provides no credible evidence to support his claim that the Respondent and child are flight risks. He offers not a scintilla of credible evidence of their intention to leave the United States or that they have economic or familial ties to another country.

Third, the propensity of the Petitioner to litigate every aspect of this case vigorously, which is born out by his serial filings in state and federal courts,[FN2] and from his proclamations that [*4]he will exhaust every one of his constitutional rights of access to the courts, it is evident that his objection to the issuance of a passport for this child is the beginning of another tour de force. Accordingly, it is

ORDERED that the Petitioner's motion is denied in all respects with prejudice to the filing of any motion to renew or reargue the instant motion, or the filing of an entirely new motion addressed to the issuance of a passport for the child; and it is further

ORDERED that pursuant to 22 CFR §51.28(a)(3)(ii)(E), the Respondent is specifically authorized to obtain a passport for the subject child, notwithstanding her status as the temporary legal and physical custodian of the child since 2000; and it is further

ORDERED that pursuant to 22 CFR §51.28(a)(3)(ii)(E), the subject child, is specifically authorized to travel with the Respondent Dawn M. who has made an application for this child's passport.

Dated: November 12, 2009E N T E R :

Brooklyn, New York

__________________________

PAULA J. HEPNER, A.J.S.C.

Footnotes

Footnote 1: The circumstances when the Department of State may refuse to issue a passport include "any case in which the Department determines or is informed by competent authority that the applicant is a minor and the passport may be denied under 22 CFR §51.28" [See, 22 CFR §51.60(b)(7)]. If a passport is denied, the Department of State "will notify in writing any person whose application has been denied" and will inform the applicant of "the specific reasons for the denial and, if applicable, the procedures for review available under 22 CFR §51.70-74" [See, 22 CFR §51.65(a)]. A person whose passport has been denied...may request a hearing to the Department of State to review the basis for the denial within 60 days of receipt of the notice of the denial" [22 CFR §51.70].

Footnote 2: The subject child was born on November 24, 1997. The litigation chronology involving these parties began in 2000 when the first custody proceeding was filed in the Court of Common Pleas in Philadelphia, Pennsylvania and expanded to New York on August 31, 2007 as a consequence of the Respondent's relocation. The Petitioner filed a complaint in 2003 in the Federal Court for the Eastern District of Pennsylvania under Docket 03-CV-0952 against the Respondent and various other defendants. During the pendency of this matter, the Petitioner has appealed three of this court's orders to the Appellate Division, Second Department. In November 2007, the Petitioner filed a "Demand to Preserve Physical Evidence and Electronically Stored Data and Metadata" in the Federal Court for the Southern District of New York naming the Respondent, her employer and various other defendants the Respondent, her counsel and his law firm, Under Docket No. 08-CV-3896, the Petitioner commenced an action in the Federal Court for the Eastern District of New York in 2008 against the Respondent and various other defendants seeking "redress in the form of class action certifications, injunctive, declaratory, damages and punitive damages for numerous violations of his and the proposed classes' constitutionally guaranteed rights and other federal and state laws that guarantee due process and equal protection of the law."The complaint has been amended numerous times to add defendants and new causes of action. In 2000, the Respondent was awarded a temporary order of custody of the parties' daughter from the Pennsylvania Court of Common Pleas and since 2007 she has had a temporary order of custody from this court for the child.