Attorney Larry Margolin was hired on the eve of trial to represent a father in Queens County Family Court. His teenage child’s mother had passed away and the child’s maternal grandmother commenced two petitions seeking full custody and guardianship. The father, who was the child’s natural father and sole surviving parent with a superior right to the care and custody of his daughter, had represented himself for nine months and was on the verge of losing custody of his daughter.
The grandmother’s counsel, the child’s counsel and the Magistrate appeared convinced the child wanted to live with the grandmother and it would be in her best interest to do so. Not only did Attorney Margolin show the Court the false allegations in the two petitions, he showed the Court it was not applying the correct legal standard set forth in a leading Court of Appeals case, which was a two-part test, and the Court could not reach the second part “best interest of the child” standard unless the grandmother established the first part of the test.
Here, the Petition did not allege any basis for the first part of the test and there were no facts to support the first part of the test. Attorney Margolin got the trial put over and then defeated the grandmother’s emergency motion seeking immediate custody of the child.
At the trial, Attorney Margolin made an opening statement that laid out the facts and relevant legal standards that the grandmother could not establish. After the grandmother took the stand and Attorney Margolin objected to the entire line of questions that were irrelevant, the Court asked the grandmother to withdraw the Petition.
After the grandmother refused to withdraw the Petition, prior to the next trial date, Attorney Margolin filed an Order to Show Cause to dismiss the Petition without a hearing, which the Court granted.
