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NY Associates Regain Custody of Son for Falsely Accused Immigrant

New York Lawyer
October 14, 2005

By Thomas Adcock
New York Law Journal

For the client, a hard-working immigrant supporting her young son and student husband, it was an ordeal in which she nearly lost custody of her child.

For Sally Kim Christie and Virginia H. Johnson, third-year litigation associates at Weil, Gotshal & Manges who took on the woman's case pro bono and won the day five months later, it was a powerful lesson in a lawyer's obligation to sometimes perform above and beyond the neat strictures of the law.

"There are no parts of this story that are not worthy of daytime soap opera," said Steven Bernstein, Brooklyn project director at Legal Services for New York City, where the Weil Gotshal attorneys served as pro bono externs this year.

At issue, he said, was the child's now-estranged father and paternal grandparents attempt in Brooklyn Family Court to steal the boy away by falsely claiming the mother to be a suicidal drug abuser who abandoned her child.

They succeeded — temporarily.

But in an amended custody order returning the child to his mother, the accusers failed to advance "a scintilla of documentary evidence to support their claims," according to Judge Paula J. Hepner's Aug. 29 decision.

Further, according to the amended order, the accusers used a false Brooklyn address to serve legal notice to the mother in earlier proceedings before another Brooklyn Family Court judge, Paul H. Grosvenor. But Judge Hepner found that the mother's Jersey City residence was long known by the husband and grandparents.

"[T]he paternal grandfather conceded [it] was a non-existent address and blamed his wife, 'whose first language is not English and her spelling is not always perfect' for 'obviously' spelling 'the name of the location of the posting incorrectly,'" Judge Hepner wrote. "The credibility of this statement is destroyed by paternal grandmother, who avers that she has a college degree in accounting."

Finally, the father and grandfather claimed that the boy's staying at his grandparents' home while his mother worked long hours at a fast-food restaurant constituted an "intra-familial custody arrangement" in which the mother relinquished her parental rights.

Judge Hepner found this to be without merit in her order, which cited numerous other misrepresentations and outright fabrications by the father and grandfather.

"This is a case of deceit and sheer fraud," said Mr. Bernstein.

According to court papers, the case began one day in March. A young Egyptian woman in an arranged marriage of Muslim tradition arrived at a Brooklyn hospital to pick up her 3-year-old son following a minor surgical procedure. Hospital officials refused to release the boy to her, informing the mother that, unbeknownst to her, an order from Judge Grosvenor had stripped her of custody rights.

An attorney for the hospital directed the distraught woman to a clerk at Family Court, who in turn referred her to Legal Services.

"The client was completely in a state of shock," said Ms. Johnson, 27, a securities litigator. "That would be an understatement."

Although she was a New Jersey resident, Mr. Bernstein accepted the Egyptian woman as a client through his routine office process, due to the "exigent nature" of the case.

"Just by hearing her story, we couldn't not take her on," said Ms. Christie, 28, a general commercial litigator. "It just seemed so outrageous."

Ms. Christie and Ms. Johnson assembled an arsenal of documentation, researched applications under the Uniform Child Custody Jurisdiction and Enforcement Act and interviewed corroborating witnesses in the cause of their petition to Judge Hepner, seeking to vacate Judge Grosvenor's original order.

Emotional Support

Key to the young lawyers' success was the client-attorney relationship.

"What they did, in terms of offering emotional support, was superb," said Mr. Bernstein. "They were sensitive and supportive, and their lawyering was thoroughly professional. I admire them enormously."

Ms. Johnson said the experience with Legal Services — her first social justice work since student days at the Benjamin N. Cardozo School of Law, where she participated in the Innocence Project — was beneficial to both her client and herself.

"Our client was a mother in a desperate situation. Sometimes it was an hourly matter, and I'd be in contact with her throughout the day, the night, and through the weekend," said Ms. Johnson. "As a young associate, I got to do things [at Legal Services] that I don't get to do every day at Weil Gotshal. I went to court on my own and argued for an order of protection for my client, for instance."

Ms. Christie, who was an intern with the Legal Aid Society while a student at Columbia Law School, turned up a bona fide accusation against her client's husband — another order of protection, this one gained by a previous wife — as well as an ace in the hole in the person of a cousin who agreed to testify in court as to the husband's character.

But the cousin's testimony proved unnecessary. When Ms. Christie and Ms. Johnson went to Family Court in August with their client, Judge Hepner issued a 27-page order based solely on briefs.

For every accusation against their client, Ms. Johnson and Ms. Christie turned up documentary evidence to the contrary — some evidence rising to the level of absurd, with notable reference to the woman's trying to kill herself.

"[T]he paternal grandfather alleges the mother attempted to commit suicide in August 2004 while living in a basement [apartment] and tried again in February 2005 by trying to 'jump from her apartment window,'" Judge Hepner wrote in the amended order. "The father's effort to correct this preposterous statement and say the apartment was on a 'higher floor than the basement' is unsupported by any documentation."

Mr. Bernstein said the grandfather had filed notice of appeal pro se. He said the father's attorney had likewise filed notice of appeal, but declined further representation of his client.

The two Weil Gotshal associates believe their professional skills were enhanced by the stint at Legal Services.

"It's obvious that this was beyond legal," Ms. Christie said. "It's a whole new dimension that law school doesn't prepare you for. Nothing prepares you for this but life experience."

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