Should being a registered sex offender preclude someone from being a custodial parent?

That's just one of the questions raised by a recent case in Monroe County Family Court that wrapped up in late August with a settlement agreement between a woman who's had custody of her sister's two children for the past four years and the children's biological father, a registered Level 3 sex offender.

Another question is when should the rights of a biological parent be considered inferior to those of a non-parent?

The settlement agreement, inked Aug. 30, provides the father with supervised visitation of his children beginning this month and unsupervised visitation beginning after Dec. 1. The agreement also gives the father joint custody, with the aunt retaining physical custody.

Nathan VanLoon, the aunt's attorney, intends to file an appeal.

"We don't believe it is in the children's best interest to be spending any time with their biological father," said VanLoon.

The whole case brings to mind a line from a 2009 state Senate report on court funding which said "Family Court is the saddest place in New York State."

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Looking into this case, I spent significant time sitting in the drab, windowless and depressing second-floor waiting area outside the Family Court rooms at the Hall of Justice downtown. Mothers rocked and fed babies while sitting in the worn and sagging rows of upholstered chairs. Men, women and children cried under the harsh glare of fluorescent lights, sobbing about custody arrangements, family breakups and sexual and physical abuse. Harried attorneys scurried between courtrooms, sometimes taking just a few minutes to confer with clients whose lives are crumbling down around them before heading before judges to argue their cases.

In this matter, the Democrat and Chronicle back in March asserted its right to be present during Family Court proceedings, as the law allows. Judge Stacey Romeo initially closed her courtroom to press, but she agreed to hear our argument for transparency and ultimately reached a decision that balanced our need for access with protecting the rights of the litigants and the privacy of the children. For this reason, some details of this story will be nonspecific I will not identify the children, their genders or ages. I also will not name any of the adults by either their first or last names, even though the aunt's partner has gone public with a webpage and a Change.org petition decrying Romeo's handling of the overall case.

Origins of case

The seeds of this story were planted back in 2014 when two young children were visiting their aunt at her home in a county other than Monroe. According to the aunt and other witnesses there, during that visit, the kids exhibited sexualized behavior alarming enough to spur the aunt to petition a Family Court for emergency temporary custody, alleging the kids were being mistreated.

She won.

In June of that year, the aunt filed a petition seeking permanent custody, alleging that the children's father had been sexually abusing the youngsters.

The father denied the allegations.

In October 2014, the aunt won by default when the father became ill and didn't make the court date and the children's mother voluntarily relinquished custody of the kids. No evidence related to the allegations of sexual abuse was presented during those proceedings.

In early 2015, the father appealed the default judgement and lost. He took his case to a higher court and in June 2017, the state Appellate Division vacated the Family Court decision and sent the matter back to be litigated.

Matthew Rich, the father's attorney, pointed out that the appellate court's decision said there had not been a hearing to determine if there were "extraordinary circumstances" present that would override the inherent right of a biological parent to raise his or her own children.

Such circumstances would include a parent's neglect or abuse of the child, abandonment of the child, a parent who is in prison, or if other serious acts which may affect the child's well-being, according to a New York Courts help page.

"The law in domestic relations gives biological parents a superior position to any other family member" when it comes to custody, absent those "extraordinary circumstances" said Rich. "The (appellate court) ruled that there needed to be an extraordinary circumstances hearing and that the evidence for that hearing was limited to the conditions present" on the day of the aunt's June 2014 filing.

In the intervening time between gaining custody and the appellate court ruling, the aunt, her husband and their partner relocated to Monroe County. They enrolled the children in therapy, got them the extensive dental care they needed and enrolled them in school. The children's mother and maternal grandparents — against the wishes of the aunt and the attorney who represented the kids — secured court-ordered visitation.

Finally, in early 2018 that court case from 2014 was finally ready to be heard. But then the days and months ticked on with scheduling delays, motions to be argued and the abrupt departure one day of the father's attorney, who threw his hands in the air in the middle of witness testimony, said "I can't do this anymore" and ran for the judge's chambers. He apparently suffered a cardiac event during the proceedings.

Court stopped the clock

VanLoon said a major sticking point with his clients was that Romeo would not hear any evidence or testimony gathered beyond the initial filing of the custody petition in June 2014. Trial transcripts make it clear Romeo did that because she believed she could not hear such evidence, given the Appellate Court ruling — in essence it was her job to hear the Aunt's case in exactly the way it would have been heard back in 2014, if the father had not been found in default.

And, Rich pointed out, the first hurdle that needed to be cleared inside Romeo's courtroom was holding a hearing to determine whether or not those extraordinary circumstances that allowed the aunt to seek custody existed in the first place. Only if the court determined those circumstances existed could the court move on to the next step: a hearing to determine what would be in the best interests of the children. That's the phase where the court could have heard any evidence or testimony developed after the June 2014 date the aunt filed for custody — evidence the aunt says shows the children were sexually abused and maltreated in their previous home.

But if the court didn't find extraordinary circumstances existed as of June 2014, the father would have immediately been given custody of his children even though they had spent the past nearly 5 years living with their aunt.

"This was not what my client wants," said Rich. "He didn't want the kids yanked from their house and dropped off at his home. That would have been traumatic for everyone involved."

Instead, he said, the settlement reached in August was a workable compromise. "It was reached with the consent of all parties involved, and nobody was ordered to do anything."

On Thursday, the aunt's partner and other family members held a rally at the Hall of Justice to bring awareness to their point-of-view and to call for Judge Romeo to be removed from the bench for allowing the father to gain any custody of the kids.

The partner said Romeo stacked the deck in favor of the biological father and refused to hear testimony from the children's therapist and others that would have proven the aunt's allegations of sexual abuse.

In court later in the morning, Romeo recused herself from the case entirely.

Romeo did not respond immediately to a phone call requesting comment.

However, Rich said throughout the case, Romeo was simply following the law.

"This is not about her being fair, " he said. "In this instance, the judge had no choice. In this instance, she was bound to follow the specific instructions of the appellate court. She is one of the best family court judges we have."

And as for the father's history on the sex offender registry? The crimes are indeed troubling, and involve a 15-year-old and a 6-year-old girl. He was convicted in 1989 and served five years in prison in Florida.

"This happened 30 years ago and he has had no subsequent arrests or convictions," said Rich. "He is a stable, contributing member of society and has had no further trouble, and he has never been out of compliance with the requirements of being a registered offender."

There have been a couple of attempts in the state Legislature to pass bills that would prohibit registered sex offenders from having custody of their own children, but those bills have never gained significant traction.

Rich said he didn't know which new judge would be assigned to the case.

But it seems clear whomever that is will continue to need the wisdom of Solomon.

MMCDERMOT@Gannett,com

Meaghan McDermott is an investigative reporter.

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