PROCEDURAL HISTORY

The Mother, Christina V. (hereinafter "Mother") and the Father, Dinesh C. (hereinafter "Father") are not married, but have one child in common, Deven C. (hereinafter "Deven"), age 3.The parties have filed numerous petitions against each other in family court since May, 2017. Cross family offense petitions and cross custody petitions remain pending. A child support petition is also pending from which a temporary support order was issued on Deven's behalf to the Mother with whom he had been living.

On February 15, 2018, the Mother filed a petition for a writ of habeas corpus alleging that Deven was with his father who was refusing to return Deven to her. The matter was assigned to this Court. Since neither party possesses a legal document determining custody of Deven, this [*2]Court has no jurisdiction to issue a writ of habeas corpus with respect to Deven. See NY Fam. Ct. Act § 651 (McKinney's 2018); see also NY Dom. Rel. L. § 70 (McKinney's 2018); Kiara B. V. Omar R., 147 AD3d 476, 476 (1st Dep't 2017) (no right to habeas corpus relief where no custody order in place). Accordingly, the Court dismisses the Mother's petition for a writ of habeas corpus.

Without a custody order in place, each parent has equal rights to custody of Deven at any time so long as it comports with his best interests.^[FN1] Notwithstanding, the Mother was permitted to file her petition for a writ of habeas corpus though not grounded in law. The reason stems from Family Court Act § 216-c(b) (hereinafter "§ 216-c(b)") which provides that "[n]o clerk of the court ... may prevent any person who wishes to file a petition from having such petition filed with the court immediately." Fam. Ct. Act § 216-c(b) (McKinney's 2018). Thus, the overwhelmed petition room in family court must accept filings, regardless of their merits, and refer them for judicial determination of all issues, including jurisdiction. See Fam. Ct. Act § 216-c (b) (McKinney's 2018).

This open ended, well-intentioned, remedial statute, coupled with the absence of family court filing fees, inadvertently lends itself to misuse. The statute allows for the routine filing of petitions for a writ of habeas corpus even where, as here, no parent has a superior right of custody. Where a custody matter is already pending in family court, as is the case here, many parents bring petitions for a writ of habeas corpus as a device to get their cases heard by a judge sooner than their scheduled court date.

The Court is mindful that public policy typically dictates free access to the courts. Scott v. Powell, 146 AD3d 964, 966 (2d Dep't 2017); Graham v. Rawley, 145 AD3d 721, 722-23 (2d Dep't 2016). However, unrestricted access to the courts, in cases such as these, serves no logical purpose. Family Court's open door filing framework permits the filing of petitions which, on their face, fail to establish a cause of action and encourages "serial filers"^[FN2] whose repeated, meritless petitions clog the family court's exceptionally large calendar that otherwise handles legitimate family issues. It is not only the family court's staff whose time is wasted because § 216-c(b) authorizes such petitions to be filed. It is also the litigants'. A litigant presumably takes time away from work or other responsibilities to come to court, and wait for their petition to be filed and heard, only to be told hours later that their petition is not supported by law and must be dismissed. Moreover, the time period during which litigants who appear on justiciable cases must wait is lengthened when these so-called emergency matters are placed immediately on the already scheduled calendar. Under the present circumstances, it may be appropriate for the Legislature to consider a modification of § 216-c(b) that more properly balances the family court's limited staff and resources with sufficient access to litigants.

This constitutes the decision, opinion, and order of the Court.