147 A.D.3d 476 (2017)

46 N.Y.S.3d 417

2017 NY Slip Op 01124

In the Matter of KIABA B., Appellant, v. OMAR R., Respondent.

Appellate Division of the Supreme Court of New York, First Department.

Order, Family Court, Bronx County (John J. Kelley, J.), entered on or about December 2, 2014, which denied the petition for a writ of habeas corpus directing respondent to produce the subject child, unanimously affirmed, without costs.

The court properly found that as there was no custody order in place and the mother had no greater right to the custody of the child than the father, the child was not being illegally detained by the father and therefore, the mother did not have a right to habeas corpus relief (Domestic Relations Law § 70).

Moreover, there was an imminent custody petition pending and, as the court advised, the mother could make an application to advance the court date or make an application on notice for custody so that both parties could be heard as to what should happen with respect to custody on a temporary basis.


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