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ABERLIN v. DOMESTIC RELS. COURT OF NEW YORK

February 5, 1958

Isadore ABERLIN, on behalf of himself and all other individuals similarly situated, Plaintiff,
v.
DOMESTIC RELATIONS COURT OF The CITY OF NEW YORK, by John Warren Hill, Presiding Justice, Peter Campbell Brown, Corporation Counsel of the City of New York, Averill Harriman, Governor of the State of New York and Louis J. Lefkowitz, Attorney General of the State of New York, Defendants



The opinion of the court was delivered by: SUGARMAN

Isadore Aberlin, on behalf of himself and all other individuals similarly situated, has commenced an action in this court against the Domestic Relations Court of the City of New York by Presiding Justice John Warren Hill, Corporation Counsel of the City of New York Peter Campbell Brown, Governor of the State of New York Averill Harriman and Attorney General of the State of New York Louis J. Lefkowitz. The ultimate relief sought by plaintiff is:

'1. That a three Judge Court be established pursuant to 28 U.S.C. Section 2284 for relief by injunction as hereinafter prayed.

'2. That an injunction issue herein to the Domestic Relations Court of the State of New York suspending or restraining enforcement, application or execution of the Uniform Support of Dependents Law as passed by the legislature in 1949 and amended thereafter, in so far as said Uniform Support of Dependents Law permits the award of support money for the support of an infant child without permitting the litigation of defenses to such action and without permitting inquiry into the right to custody and/or the fitness to have custody of the person or persons seeking such support for an infant child.

 '3. That this Court adjudge and declare that the Uniform Support of Dependents Law is void and unconstitutional in so far as it prohibits or proports to prohibit the inquiry into the right to custody and fitness to have custody of the person or persons seeking support for an infant child outside the jurisdiction of this State pursuant to the provisions of the Uniform Support of Dependents Law.'

 The complaint alleges that

 '[this] cause of action arises under and is justified by the Constitution of the United States, Article IV, and Article XIV, Section 1; the act passed by the New York State Legislature in 1949, known as the Uniform Support of Dependents Law and amended thereafter in 1952, 1953, 1955, 1956 and 1957.'

 The defendants move to dismiss the complaint. The plaintiff cross-moves for the convening of a three judge court to hear and determine the cause.

 Accepting the allegations of fact in the complaint as true on this motion to dismiss, it appears that plaintiff is the father of one Dorothy Gail Aberlin, an infant who in November 1957 was 12 years of age. Selma Aberlin, the infant's mother, divorced plaintiff in Massachusetts in 1953 and was given custody of their child. The divorce decree required plaintiff to pay $ 25 weekly for the support of his child. In February 1955 Selma Aberlin gave the plaintiff custody of their child and went to the psychiatric division of Bellevue Hospital in New York City for observation of her mental condition. James Zisman, Selma Aberlin's brother-in-law, thereafter arranged for her transfer to Massachusetts, where she was adjudicated an incompetent person. Selma Aberlin has not yet recovered her sanity. In April 1955 James Zisman, without notice to plaintiff and against his wishes, took the child Dorothy Gail Aberlin from the school she was attending and transported her to Massachusetts. This 'abduction' was under purported authority of an order of the Probate Court of Suffolk County, Massachusetts, procured without notice to plaintiff. The order gave custody of the child to Lenore Zisman, who is the sister of Selma Aberlin and the wife of James Zisman. Plaintiff in July 1955 sought unsuccessfully to recover custody of his daughter through a habeas corpus proceeding in the Massachusetts Superior Court of Boston. Relief was denied him on the ground that his forum for relief was the Probate Court. Plaintiff refused to apply to that court for relief.

 In September 1955 the Zismans obtained an order vacating the decree awarding Lenore Zisman custody ab initio and reinstating that provision of the original divorce decree which awarded custody to the incompetent Selma Aberlin.

 In September 1955 an application was brought in the Domestic Relations Court of New York City, in the name of Selma Aberlin on behalf of Dorothy Gail Aberlin, for the latter's support. This proceeding was commenced under the Uniform Support of Dependents Law (L. 1949, c. 807, as amended, 65 McKinney's Unconsol.Laws, § 2111 et seq.).

 Plaintiff sought to prevent the processing of this application by commencing a custody proceeding in the New York Supreme Court. This attempt was unsuccessful. The custody proceeding was dismissed on the ground that the New York Supreme Court lacked jurisdiction. Aberlin v. Aberlin, 150 N.Y.S.2d 454. The support proceeding in the Domestic Relations Court of New York City resulted in a 'temporary' support order. An appeal was taken to the Appellate Division. 3 A.D.2d 417, 161 N.Y.S.2d 305. On appeal the matter was reversed on procedural grounds and sent back to the Domestic Relations Court with instructions. The Domestic Relations Court thereupon held a hearing and ordered the plaintiff to pay $ 25 weekly for his daughter's support in addition to sums for orthodonture and camp.

 Plaintiff complains that at the hearing the court refused to hear his 'defenses' that pursuant to New York Law, the petitioner mother as a still adjudicated incompetent had no standing to bring an action; that the mother had been illegally released from the Boston State Hospital in violation of Boston Statutes; that the father had evidence to show a conspiracy to release the mother from the Boston State Hospital in violation of Boston law; that the father had the right to custody of his child both by operation of law when the mother became incompetent and by the mother's own affirmative acts; that the child had been illegally taken from him in violation of the penal statutes of New York State; that the child and the mother were being exploited; that the child was being used as a pawn to extract money from the father and that demands for excessive amounts of money had been made for relinquishing custody of the child to him; that the child was being used as a pawn to compel his submission to the Probate Court of Massachusetts for the purpose of obtaining modification of the divorce decree in other respects than the question of custody of the child.

 On the foregoing facts, the plaintiff urges that the Uniform Support of Dependents Law 'as interpreted is void and unconstitutional with respect to the provisions for the support of a dependent child, in that they violate Amendment XIV, Section 1 of the United States ...


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