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LHOTAN v. D'ELIA

June 30, 1976

Dorothy and George LHOTAN as next friends of Cheryl and Patricia Wallace, Petitioners,
v.
Joseph D'ELIA, Commissioner of the Nassau County Department of Social Services, Respondent



The opinion of the court was delivered by: BRUCHHAUSEN

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.

 FEDERAL COURTS DO NOT ADJUDICATE CASES INVOLVING CUSTODY OF MINORS OR RIGHT OF VISITATION.

 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.'"

 THIS PROCEEDING IS BARRED BY RES ADJUDICATA (PRIOR ADJUDICATION).

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

 
"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 ...


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