appeal and/or complaint against judge?

[KathyNY]

I am in the state of NY.  My kids were just allowed to relocate to Illinois, and while I haven't seen the actual court order from the judge yet, our attorney says that my visitation schedule is the same as what BM's other daughter's father agreed to.  We lost our case because Dad#2 dropped his case, decided not to fight his daughter's moving out of state, and now my visitation is being affected by Dad#2's choices, too.

Dad#2 agreed that, despite only getting visitation for 1 week at Christmas, 1 week for spring break and 8 weeks during the summer, during the week of Christmas he will give his daughter back to BM Christmas Eve through Christmas morning.  Now, BM moved 12 hours away and will only be in our town staying with relatives so the kids will be removed from their second homes to sleep at a relatives house for the night instead.  Our lawyer is sending a letter to the judge asking for our visitation to be changed, that I not be made to give up my kids on Christmas Eve for the night, but he is not optomistic.  It is unfair of the judge to penalize me because of Dad#2's choices, even though it affects children in the same household.

It has been suggested to me to make a complaint about this judge (he's actually a Court Attorney Referee because Family Court has too many "Parts") to the Bar Association, and/or to make an appeal.  It was also brought up, though, that by filing a complaint the judge may come to attention and rule in our favor in the future, or he may hold it against us.

1) Should I file an appeal with a higher court and, if so, which one- Supreme Court?  

2) Or do I file a complaint with the Bar Association?  How?

3) If the judge finds out about our complaint, if we make one, isn't it possible that all further actions in front of him will be ruled against us?(part of the court order states that NY state retains jurisdiction over IL)  Is it worth the risk?

4) If judges are elected officials, but this guy is a Court Attorney Referee, is he appointed to office, so that we'd be able, as the public, to not vote him into office again?

Thank you.

[socrateaser]

> It is unfair of the judge to penalize me because of Dad#2's
>choices, even though it affects children in the same
>household.

This is your opinion. However, the child(ren)'s best interest is the only thing that the court must consider. You are not necessarily being penalized for the other parent's choice to settle.

>1) Should I file an appeal with a higher court and, if so,
>which one - Supreme Court?

If your grounds for appeal is that the other parent's choice has affected the outcome of your case, then you will lose. You must show that the child(ren)'s best interests are harmed by the move, regardless of the other parent's decision.

>
>2) Or do I file a complaint with the Bar Association?  How?

The bar association does not generally regulate judges. There is usually a judicial counsel, but it's a matter of local law, so I can't tell you where to send your complaint.

>3) If the judge finds out about our complaint, if we make one,
>isn't it possible that all further actions in front of him
>will be ruled against us?(part of the court order states that
>NY state retains jurisdiction over IL)  Is it worth the risk?

You can request that the judge disqualify himself. But, it's up to the judge, so there's always a risk factor.

>
>4) If judges are elected officials, but this guy is a Court
>Attorney Referee, is he appointed to office, so that we'd be
>able, as the public, to not vote him into office again?

I don't know. This is a legislative issue for NY.

Regardless, based on your post, I don't think you have a case for an appeal or a complaint. You may have other grounds for why the move should not have been allowed, but as I don't know the NY factors for a moveaway, or your other facts, I can't comment further.

[KathyNY]

The "judge" ruled that my kids could move because he didn't want them separated from their sister, and since they were used to living with mom and "visiting" dad, he didn't want to change that lifestyle.  My lawyer argued that a father's bond with his children should be considered a stronger factor than the bond the children have with their half-sister.  BM lied the entire time, on the stand, and we provided documentation to prove so, but the judge still allowed the move because of the kids staying together.  

As for the other factors for a relocation case, BM moved because of a job transfer her then boyfriend volunteered for.  They got engaged and then married within the six weeks before the trial began, and they set up their house in Illinois before we even found out, from someone else, that they'd taken this transfer.  Her new husband took a pay cut for the new job, and their economic stability is not increased by the move; BM is a stay-at-home-mom.  All of the extended family for all three children, on BM's side, my side, her new husband's side, and my fiance's side are all here in our town in NY.  We found out during the trial that BM has one cousin in Illinois with a few kids who also took the transfer, but that's it for family out there.

The Law Guardian, though he did recommend that the relocation be allowed, for the same reasons the judge cited (the kids not being separated), also asked the judge to order I get visitation at Thanksgiving and any other school breaks longer than a weekend, but the judge declined to rule on that, said that we are "reasonable parents who can work those things out amongst (our)selves."  Apparently he quickly forgot about BM's lies as she's not reasonable and will not give us any extra visitation, and certainly won't provide her share of the transportation if she did.

I wasn't clear with my original question about the appeal/complaint.  We're pretty certain we wouldn't win an appeal if we tried, although we'd love to try- we hate to give up.  

1) If the "judge" files the court order giving us the Christmas vacation but ruling that I have to give the kids back to BM for Christmas Eve through Christmas morning, therefore taking away the holiday of my holiday visitation, would that be grounds for an appeal on that portion of the court order?

2) Where would we file that appeal?  I believe Family Court is the "fourth division" so do we go to a different division or to the Supreme Court?

Thank you.

[socrateaser]

>1) If the "judge" files the court order giving us the
>Christmas vacation but ruling that I have to give the kids
>back to BM for Christmas Eve through Christmas morning,
>therefore taking away the holiday of my holiday visitation,
>would that be grounds for an appeal on that portion of the
>court order?

The issue is whether or not the judge has abused his discretion. This requires a very thorough canvasing of NY case law and statutes to determine whether the new facts re the children's bond with a half sister should prevail over the bond with a parent. To me the answer is self evident: no, because the ties with a parent are almost certainly stronger than with a half sibling. If it were a full sibling, that would be different.

So, while I would not have ruled against you, the court has and the issue is: on what basis of law?

I can't spend the time to research this, but your attorney should be able to tell you EXACTLY what basis in law makes a half sibling bond more important than a parental bond.

If your attorney cannot answer this question, then your attorney cannot possibly recommend a course of action. I know that I couldn't.

So, I would "require" that your attorney explain the decision, or have the court explain it so there is no question about why you would be appealing.

Without this info, you're operating entirely in the dark.

>
>2) Where would we file that appeal?  I believe Family Court is
>the "fourth division" so do we go to a different division or
>to the Supreme Court?

I don't know NY appellate procedure, except that the Supreme Court in NY is the second highest appellate court and the NY Court of Appeals is the highest (bad nomenclature, in my opinion). Whether you have another bite at the trial court level is completely unknown to me. Ask your attorney.