DRL 75 – Domestic Relations Law 75
1. This article may be cited as the “uniform child custody jurisdiction and enforcement act”.
2. It is the intent of the legislature in enacting this article to provide an effective mechanism to obtain and enforce orders of custody and visitation across state lines and to do so in a manner that ensures that the safety of the children is paramount and that victims of domestic violence and child abuse are protected. It is further the intent of the legislature that this article be construed so as to ensure that custody and visitation by perpetrators of domestic violence or homicide of a parent, legal custodian, legal guardian, sibling, half-sibling or step-sibling of a child is restricted pursuant to subdivision one-c of section two hundred forty of this chapter and section one thousand eighty-five of the family court act.
Matter of Nathaniel H. (Nathaniel H.), 2023 NY Slip Op 00927, ¶ 1, 213 A.D.3d 525, 526, 183 N.Y.S.3d 413, 415 (App. Div. 1st Dept.)
The legislative purpose of the UCCJEA is “to provide an effective mechanism to obtain and enforce orders of custody and visitation across state lines and to do so in a manner that ensures that the safety of the children is paramount and that victims of domestic violence and child abuse are protected” (Domestic Relations Law § 75[2]).
Section 76-c of the Domestic Relations Law (“temporary emergency jurisdiction”) provides that, where the child is in “imminent risk of harm,” an order issued under temporary emergency jurisdiction “shall remain in effect” until a court having UCCJEA jurisdiction “has taken steps to assure the protection of the child” (Domestic Relations Law § 76-c[2]).
DRL 75-A – Domestic Relations Law 75-A
In this article:
1. “Abandoned” means left without provision for reasonable and necessary care or supervision.
2. “Child” means an individual who has not attained eighteen years of age.
3. “Child custody determination” means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual.
4. “Child custody proceeding” means a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. The term does not include a proceeding involving juvenile delinquency, person in need of supervision, contractual emancipation, or enforcement under title three of this article.
5. “Commencement” means the filing of the first pleading in a proceeding.
6. “Court” means an entity authorized under the law of a state to establish, enforce, or modify a child custody determination.
7. “Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.
8. “Initial determination” means the first child custody determination concerning a particular child.
9. “Issuing court” means the court that makes a child custody determination for which enforcement is sought under this article.
10. “Issuing state” means the state in which a child custody determination is made.
11. “Modification” means a child custody determination that changes, replaces, supersedes, or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination.
12. “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency or instrumentality, public corporation or any other legal or commercial entity.
13. “Person acting as a parent” means a person, other than a parent, who:
(a) has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and
(b) has been awarded legal custody by a court or claims a right to legal custody under the law of this state.
14. “Physical custody” means the physical care and supervision of a child.
15. “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
16. “Tribe” means an Indian tribe or band, or Alaskan Native village, which is recognized by federal law or formally acknowledged by a state.
17. “Warrant” means an order issued by a court authorizing law enforcement officers to take physical custody of a child.
18. “Law enforcement officer” means a police officer as defined in subdivision thirty-four of section 1.20 of the criminal procedure law.
Matter of Nathaniel H. (Nathaniel H.), 2023 NY Slip Op 00927, ¶ 2, 213 A.D.3d 525, 526-27, 183 N.Y.S.3d 413, 415 (App. Div. 1st Dept.)
Family Court improperly relinquished emergency jurisdiction for three reasons. First, there is no evidence in this record, and Family Court’s order fails to state any basis for finding, that the Texas court had “home state” jurisdiction, since the child had not resided there for six months immediately preceding commencement of the father’s Texas custody proceeding (Domestic Relations Law §§ 75-a[7]; 76[1][a]).
Second, the record and Family Court’s order are also devoid of any factual basis for finding that any of the alternative jurisdictional bases applied to Texas. There is no evidence that the child at that time had a “significant connection” with Texas or that “substantial evidence . . . concerning the child’s care, protection, training and personal relationships” was available in Texas (Domestic Relations Law § 76[1][b]).
Finally, given the allegations in the neglect petition and the fact that Family Court had been informed on or about June 3, 2021 that the Texas Department of Family and Protective Services would not investigate whether the father was a danger to the child because the mother and child resided in New York, Family Court should not have relinquished emergency jurisdiction “in the absence of any orders from the Texas court safeguarding the child[]” (Matter of Levi L., Deanna R., 203 AD3d 490, 490, 160 N.Y.S.3d 871 [1st Dept 2022]; see also Matter of Santiago v Riley, 79 AD3d 1045, 1046, 915 N.Y.S.2d 99 [2d Dept 2010]; Matter of Jamilah DD v Edwin EE., 152 AD3d 998, 59 N.Y.S.3d 193 [3d Dept 2017]).
DRL 75-B – Domestic Relations Law 75-B
This article does not govern an adoption proceeding or a proceeding pertaining to the authorization of emergency medical care for a child.
Matter of Nemes v. Tutino, 2019 NY Slip Op 03236, ¶ 3, 173 A.D.3d 16, 19-20, 101 N.Y.S.3d 538, 542 (App. Div. 4th Dept.)
In 1968, the National Conference of Commissioners on Uniform State Laws promulgated the Uniform Child Custody Jurisdiction Act (UCCJA). The Conference’s primary motivation was to “avoid jurisdictional competition and conflict with courts of other states in matters of child custody” (Domestic Relations Law former § 75-b [1] [a]).
To this end, the Conference proposed a simple framework for determining jurisdiction in custody matters (see former § 75-d [1]). A state would have jurisdiction if, among other bases, it was the “home state” of the child at the commencement of the proceeding or in the preceding months (former § 75-d [1] [a]; see Vanneck v Vanneck, 49 NY2d 602, 609, 404 NE2d 1278, 427 NYS2d 735 [1980]).
“Home state,” in turn, was defined as the state where the child had lived for six months before the proceeding, or, if the child was less than six months old, where he or she had lived since birth (see former § 75-c [5]).
DRL 75-C – Domestic Relations Law 75-C
A child custody proceeding that pertains to an Indian child as defined in the Indian Child Welfare Act, 25 U.S.C. § 1901et seq., is not subject to this article to the extent that it is governed by the Indian Child Welfare Act.
A court of this state shall treat a tribe as if it were a state of the United States for the purpose of applying this title and title two of this article.
A child custody determination made by a tribe under factual circumstances in substantial conformity with the jurisdictional standards of this article must be recognized and enforced under title three of this article.
The mother contends that Family Court erred in failing to exercise jurisdiction over the matter and in dismissing her petition. The UCCJEA was enacted to “provide an effective mechanism to obtain and enforce orders of custody and visitation across state lines” (Domestic Relations Law § 75 [2]; see generally Matter of Bowman v Bowman, 82 AD3d 144, 150-151, 917 NYS2d 379 [2011]).
In accord with this purpose, the UCCJEA requires that tribal court custody determinations made in “substantial conformity” with its provisions be afforded full faith and credit (Domestic Relations Law § 75-c [3]). Relevant here, “a New York court may not exercise jurisdiction if, at the time the New York proceeding is commenced, a custody proceeding concerning the same child has been commenced in another state having jurisdiction under the UCCJEA, unless a court in the other state terminates . . . that proceeding” (Matter of Hiles v Hiles, 165 AD3d 1394, 1395, 85 NYS3d 267 [2018]; see Domestic Relations Law § 76-e [1]).
Accordingly, Family Court properly declined to exercise jurisdiction in light of the then-pending custody litigation in the Tribal Court regarding the subject children, and the mother’s petition was properly dismissed (see Domestic Relations Law §§ 76-a [1]; 76-b [1]; 76-e [1]; Matter of Frankel v Frankel, 127 AD3d 1186, 1187, 7 NYS3d 531 [2015]; Stocker v Sheehan, 13 AD3d 1, 6-7, 786 NYS2d 126 [2004]; People ex rel. Stover v Stover, 112 AD2d 519, 521, 490 NYS2d 925 [1985]; compare Matter of Andrews v Catanzano, 44 AD3d 1109, 1110, 844 NYS2d 147 [2007])
Matter of Kawisiiostha N. v. Arthur O., 2019 NY Slip Op 02393, ¶ 1, 170 A.D.3d 1445, 1446, 97 N.Y.S.3d 329, 331 (App. Div. 3rd Dept.)
DRL 75-D – Domestic Relations Law 75-D
1. A court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying this title and title two of this article.
2. Except as otherwise provided in subdivision three of this section, a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this article must be recognized and enforced under title three of this article.
3. A court of this state need not apply this article if the child custody law of a foreign country as written or as applied violates fundamental principles of human rights.
Matter of Chavez v. Maldonado, 2023 NY Slip Op 00659, ¶¶ 1-2, 213 A.D.3d 757, 758-59, 182 N.Y.S.3d 740, 741 (App. Div. 2nd Dept.)
The Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law art 5-A; hereinafter UCCJEA) provides, in relevant part, that a New York court has jurisdiction to make an initial child custody determination if “this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state” (Domestic Relations Law § 76[1][a]; see Matter of Gathiaka v Mubea, 202 AD3d 678, 678, 158 N.Y.S.3d 600; Matter of Katz v Katz, 117 AD3d 1054, 986 N.Y.S.2d 611).
The UCCJEA defines “home state” as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding” (Domestic Relations Law § 75-a[7]; see Matter of Montanez v Tompkinson, 167 AD3d 616, 90 N.Y.S.3d 62).
Under the UCCJEA, a court of New York “shall treat a foreign country as if it were a state of the United States” (Domestic Relations Law § 75-d[1]) and thus, may treat a foreign nation as a home state (see Matter of Gathiaka v Mubea, 202 AD3d at 678; Matter of Hollander v Weissberg, 147 AD3d 831, 833, 47 N.Y.S.3d 356).
DRL 75-E – Domestic Relations Law 75-E
A child custody determination made by a court of this state that had jurisdiction under this article binds all persons who have been served in accordance with the laws of this state or notified in accordance with section seventy-five-g of this title or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified or except to the extent that enforcement of an order would violate subdivision one-c of section two hundred forty of this chapter or section one thousand eighty-five of the family court act.
Chue v. Clark, 2014 NY Slip Op 24382, ¶¶ 8-14, 46 Misc. 3d 973, 986-94, 999 N.Y.S.2d 676, 686-92 (Sup. Ct.)
In attempting to determine whether the foreign custody determination—in dictating terms of the father’s visitation rights—is enforceable in New York, this court also focuses on Domestic Relations Law § 75-e, which makes the Singapore determination binding if the wife was “given an opportunity to be heard” on the visitation issues before the Singapore court.
The wife’s pleadings in this case, read broadly, make the argument that she was never given that opportunity because while she signed the consent to judgment, she never signed any agreement containing the specific terms of visitation. However, the New York statute does not require that the wife’s view on the visitation “be heard”; it simply requires that she be given the “opportunity to be heard.”
As noted earlier, the wife was extended that opportunity by the Singapore courts: the interim judgment includes a “pronouncement” by the judge that “unless sufficient cause be shown,” the judgment would become final in three months.
In this court’s view, the wife was extended, by the terms of the interim judgment, an “opportunity to be heard” on the extent of the husband’s visitation rights. Because she was extended that opportunity and declined it, the custody determination from Singapore binds her in this proceeding.
The language, inserted by the Singapore court, does not offend this court’s view of the fundamental right of the wife regarding her children. The language inserted by the Singapore court reflects a reasoned approach to applying the “reasonable access” standard—to which the wife admits she did agree—to the father’s long-distance relationship with his children.
As noted infra, the terms of this visitation are not markedly different from the access rights accorded distant parents under well-established New York precedents. Because the visitation language in the interim judgment of divorce does not qualify as a “violation of the wife’s fundamental human rights,” the custody determination of Singapore and the language governing the father’s access rights to his children are entitled to be registered under the UCCJEA and are enforceable against his wife.
The Application for Contempt for Violation of the Singapore Judgment
Because the visitation decree is enforceable under the UCCJEA, this court must consider the husband’s application to enforce it through contempt. A finding of contempt requires this court to find “(1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct.” (Bernard-Cadet v Gobin, 94 AD3d 1030, 1031, 943 NYS2d 164 [2d Dept 2012].)
Willful interference with a noncustodial parent’s right to visitation is so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent. (Matter of Ross v Ross, 68 AD3d 878, 890 NYS2d 127 [2d Dept 2009].)
In this case, the interim judgment laid out specific terms for the father’s visitation and the wife, in undisputed conduct, has failed to follow its dictates. (Mullen v Mullen, 80 AD3d 981, 913 NYS2d 925 [3d Dept 2011].) There is no claim that the custody provisions are indefinite or lack specifics.
The interim judgment from Singapore is clear and unequivocal. Based on these undisputed facts, the wife is determined to have violated the terms of the judgment of divorce through the following conduct:
denying the father unsupervised overnight parenting with his children at reasonable intervals during the last two years; and
denying the father the right to have his children visit him in Singapore during the last three years.12 (Matter of Kellezi v Kellezi, 106 AD3d 737, 963 NYS2d 875 [2d Dept 2013] [contempt finding for violation of visitation order]; Matter of Wiebke v Wiebke, 77 AD3d 964, 909 NYS2d 395 [2d Dept 2010].)
While the court finds that the wife is in contempt for such undisputed violations of the judgment, this court will allow the wife to purge her contempt by permitting the father to do have certain custodial rights without interference
New York law permits the party in contempt to purge the contempt by performing the act required, or by undoing or reversing the acts constituting the contempt. (Matter of Silverstein v Aldrich, 76 AD2d 911, 429 NYS2d 41 [2d Dept 1980].) New York courts have permitted a party to purge his or her contempt in matrimonial matters, including visitation disputes. (Matter of McMinn v Taylor, 118 AD3d 887, 988 NYS2d 247 [2d Dept 2014]; El-Dehdan v El-Dehdan, 114 AD3d 4, 978 NYS2d 239 [2d Dept 2013].) If the wife fails to perform these acts within a reasonable time, the court will consider, upon proper application, further penalties.
As these cases demonstrate, New York courts, in fashioning “reasonable access” for parents who live a long distance from their children, have imposed visitation plans very similar to those imposed by the Singapore court in this case.
Finally, the wife seeks a change from joint to sole custody. She must prove a “sufficient change in circumstances demonstrating a real need for a change of custody in order to insure the child’s best interests.” (Matter of Dorsa v Dorsa, 90 AD3d 1046, 935 NYS2d 343 [2d Dept 2011].)
There is no evidence to support such a change; the husband has expressed his desire to see his children consistent with the Singapore judgment of divorce. The husband’s lifestyle has not changed and there is no such allegation.
Based on all of these factors, the wife’s motion to vacate the Singapore judgment of divorce, or its visitation provisions, is denied.
In conclusion:
the Singapore judgment and its custody order are recognized and registered pursuant to section 77-d of the Domestic Relations Law;
the wife is in contempt for violation of the terms of the Singapore judgment, but permitted to purge that contempt through a series of actions to accommodate the father’s rights under the agreement and to make him whole for the wife’s failure to abide by the terms of the interim judgment;
the father’s request for a bond to be posted by the wife is denied;
the father is awarded $6,000 in attorneys fees;
the wife’s motion to vacate the Singapore judgment is denied; and,
to the extent that the wife’s application seeks to modify the Singapore judgment and change the visitation provisions, her application is denied.
DRL 75-F – Domestic Relations Law 75-F
If a question of existence or exercise of jurisdiction under this article is raised in a child custody proceeding, the question, upon request of a party, child or child’s attorney must be given priority on the calendar and handled expeditiously.
Matter of Diana XX v. Nicole YY, 2021 NY Slip Op 00352, ¶ 1, 192 A.D.3d 235, 237-38, 140 N.Y.S.3d 615, 617 (App. Div. 3rd Dept.)
On May 2, 2019, petitioner — the paternal grandmother of the older child — commenced a Family Ct Act article 6 proceeding asserting that a 2016 custody order that had given her joint legal custody of the older child should be modified to grant her sole legal and physical custody of the older child.
The parties first appeared on the petition on May 28, 2019, at which time the matter was adjourned for the assignment of a new judge due to both Chemung County Family Court judges having conflicts of interests that required recusal. The matter once again came before Family Court on June 27, 2019; at that point, an Elmira City Court Judge had been assigned to serve as an Acting Family Court Judge on the matter.
During this appearance, a magistrate from the Tennessee court appeared by phone and it was agreed that the matter would be adjourned to August 2019 for a joint hearing on the issue of jurisdiction. However, as a result of apparent miscommunications and a lack of diligence, cooperation and urgency on the part of Family Court (see generally Domestic Relations Law § 75-f), the contemplated August 2019 joint hearing did not occur.
DRL 75-G – Domestic Relations Law 75-G
Notice required for the exercise of jurisdiction when a person is outside this state shall be given in a manner prescribed by the law of this state for service of process, as provided in paragraph (a), (b) or (c) of this subdivision, or by the law of the state in which the service is made, as provided in paragraph (d) of this subdivision. Notice must be given in a manner reasonably calculated to give actual notice. If a person cannot be served with notice within the state, the court shall require that such person be served in a manner reasonably calculated to give actual notice, as follows:
(a) by personal delivery outside the state in the manner prescribed by section three hundred thirteen of the civil practice law and rules; or
(b) by any form of mail requesting a receipt; or
(c) in such manner as the court, upon motion, directs, including publication, if service is impracticable under paragraph (a) or (b) of this subdivision; or
(d) in such manner as prescribed by the law of the state in which service is made.
Proof of service outside the state shall be by affidavit of the individual who made the service, or in the manner prescribed by the order pursuant to which service is made. If service is made by mail, proof may be by a receipt signed by the addressee or other evidence of delivery to the addressee. Proof of service may also be in the manner prescribed by the law of the state in which the service is made.
Notice is not required for the exercise of jurisdiction with respect to a person who submits to the jurisdiction of the court.
Matter of Reyes v. Munoz, 2021 NY Slip Op 06176, ¶ 1, 199 A.D.3d 813, 813-14, 154 N.Y.S.3d 256, 257 (App. Div. 2nd Dept.)
Service without New York State may be made in the same manner as service is made within the state (see Domestic Relations Law § 75-g[1][a]; CPLR 313; Matter of Romero v Ramirez, 100 AD3d 909, 910, 955 N.Y.S.2d 353). “Proof of service outside the state shall be by affidavit of the individual who made the service” (Domestic Relations Law § 75-g[2]).
“Generally, a process server’s affidavit of service establishes a prime facie case as to the method of service and, therefore, gives rise to a presumption of proper service” (Matter of Romero v Ramirez, 100 AD3d at 910 [internal quotation marks omitted]; see Matter of Nwabueze v Okafor, 166 AD3d 780, 780-781, 88 N.Y.S.3d 206).
DRL 75-F – Domestic Relations Law 75-F
A party to a child custody proceeding, including a modification proceeding, or a petitioner or respondent in a proceeding to enforce or register a child custody determination, is not subject to personal jurisdiction in this state for another proceeding or purpose solely by reason of having participated, or of having been physically present for the purpose of participating, in the proceeding.
A person who is subject to personal jurisdiction in this state on a basis other than physical presence is not immune from service of process in this state. A party present in this state who is subject to the jurisdiction of another state is not immune from service of process allowable under the laws of that state.
The immunity granted by subdivision one of this section does not extend to civil litigation based on acts unrelated to the participation in a proceeding under this article committed by an individual while present in this state.
Vanneck v. Vanneck, 49 N.Y.2d 602, 609-10, 427 N.Y.S.2d 735, 738, 404 N.E.2d 1278, 1281 (1980)
The inquiry is not completed merely by a determination that a jurisdictional predicate exists in the forum State, for then the court must determine whether to exercise its jurisdiction. There, too, the act guides the determination, commanding the court to consider whether it is an inconvenient forum (Domestic Relations Law, § 75-h) or whether the conduct of the parties militates against an exercise of jurisdiction (Domestic Relations Law, § 75-i; see, also, Matter of Settle, 276 Ore 759).
Notwithstanding that this State has jurisdiction, a court “shall not exercise its jurisdiction under this article if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this article” (Domestic Relations Law, § 75-g, subd 1; see, e.g., Paltrow v Paltrow, 37 Md App 191).
Once a court of this State learns of the pendency of another proceeding, the court “shall stay [its own] proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with sections seventy-five-s through seventy-five-v of this article” (Domestic Relations Law, § 75-g, subd 3).
DRL 75-I – Domestic Relations Law 75-I
A court of this state may communicate and, pursuant to subdivision four of section seventy-six-c, subdivision two of section seventy-six-e and section seventy-seven-fof this article, must communicate, with a court in another state concerning a proceeding arising under this article.
The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.
Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties. A record need not be made of the communication.
Except as otherwise provided in subdivision three of this section, a record must be made of a communication under this section. The parties must be informed promptly of the communication and granted access to the record.
For the purposes of this section, “record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
Matter of Touchet v. Horstman, 2022 NY Slip Op 04633, ¶ 2, 207 A.D.3d 639, 640-41, 172 N.Y.S.3d 82, 83-84 (App. Div. 2nd Dept.)
When a court, acting pursuant to these provisions, communicates with a court of another state on substantive matters, it must make a record of the communication, promptly inform the parties of the communication, and grant the parties access to the record (see Domestic Relations Law § 75-i[4]; Matter of Quevedo v Overholser, 187 AD3d at 925; Matter of Frankel v Frankel, 127 AD3d at 1188).
The court may, in its discretion, allow the parties to participate in the communication, but “[i]f the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made” (Domestic Relations Law § 75-i[2]; see Matter of Vashon H. v Bret I., 191 AD3d at 1121; Matter of Quevedo v Overholser, 187 AD3d at 925; Matter of Frankel v Frankel, 127 AD3d at 1188).
Here, the Family Court correctly determined that, in light of the pending proceedings in California, it was required to communicate with the California court (see Domestic Relations Law §§ 76-e, 77-f).
Contrary to the mother’s contention, the Family Court properly informed the parties of the communication and made a sufficient record of it (see Matter of Montanez v Tompkinson, 167 AD3d 616, 90 N.Y.S.3d 62). However, after providing that information to the parties, who had not participated in the communication, the court immediately announced its decision on the issue of jurisdiction, without affording the parties an opportunity to present facts and legal arguments.
This did not comport with the requirements of Domestic Relations Law § 75-i(2), and, under the circumstances of this case, requires reversal (see Matter of Vashon H. v Bret I., 191 AD3d at 1122; Matter of Hiles v Hiles, 165 AD3d 1394, 1396, 85 N.Y.S.3d 267; Matter of Beyer v Hofmann, 161 AD3d 1536, 1537, 75 N.Y.S.3d 758; Matter of Frankel v Frankel, 127 AD3d at 1188; Matter of Andrews v Catanzano, 44 AD3d 1109, 1110-1111, 844 N.Y.S.2d 147).
The mother’s remaining contention is without merit.
Accordingly, we reverse the order appealed from, reinstate the mother’s petitions, and remit the matter to the Family Court, Suffolk County, for further proceedings on the mother’s petitions and a new determination as to whether the court may properly exercise subject matter jurisdiction.
DRL 75-J – Domestic Relations Law 75-J
In addition to other procedures available to a party, a party to a child custody proceeding may offer testimony of witnesses who are located in another state, including testimony of the parties and the child, by deposition or other means allowable in this state for testimony taken in another state. The court on its own motion may order that the testimony of a person be taken in another state and may prescribe the manner in which and the terms upon which the testimony is taken.
A court of this state may permit an individual residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in that state. A court of this state shall cooperate with courts of other states in designating an appropriate location for the deposition or testimony and the procedures to be followed by the persons taking such deposition or testimony. Any such testimony or deposition shall be recorded and preserved for transcription.
Documentary evidence transmitted from another state to a court of this state by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the means of transmission.
Matter of Sutton v. Rivera, 2021 NY Slip Op 07548, ¶ 2, 200 A.D.3d 1048, 1050, 155 N.Y.S.3d 810, 811-12 (App. Div. 2nd Dept.)
Further, the Supreme Court should not have summarily determined, without a hearing, that New York was not a convenient forum and that Hawaii was a more appropriate forum. If, upon remittal, the court determines that it does retain exclusive and continuing jurisdiction pursuant to Domestic Relations Law § 76-a, it may exercise that jurisdiction or it may decline to do so if it determines, upon consideration of all of the relevant statutory factors and after allowing the parties to be heard, that New York is an inconvenient forum (see Domestic Relations Law § 76-f[1], [2]; Matter of Ralph E.B. v Jovonna K.F., 173 AD3d at 854; Matter of Elbakri v Farag, 71 AD3d at 768).
The court is reminded that the extended time that has passed since the father filed his September 2019 petitions should “not militate in favor of finding that New York is an inconvenient forum” (Matter of Helmeyer v Setzer, 173 AD3d 740, 743, 105 N.Y.S.3d 541), and that the UCCJEA provides a mechanism for taking testimony from outside of New York (see Domestic Relations Law § 75-j).
DRL 75-K – Domestic Relations Law 75-K
A court of this state may request the appropriate court of another state to:
(a) hold an evidentiary hearing;
(b) order a person to produce or give evidence pursuant to procedures of that state;
(c) order that an evaluation be made with respect to the custody of a child involved in a pending proceeding;
(d) forward to the court of this state a certified copy of the transcript of the record of the hearing, the evidence otherwise presented, and any evaluation prepared in compliance with the request; and
(e) order a party to a child custody proceeding or any person having physical custody of the child to appear in the proceeding with or without the child.
Upon the request of a court of another state, a court of this state may hold a hearing or enter an order described in subdivision one of this section.
Travel and other necessary and reasonable expenses incurred under subdivisions one and two of this section may be assessed against the parties according to the law of this state.
A court of this state shall preserve the pleadings, orders, decrees, records of hearings, evaluations, and other pertinent records with respect to a child custody proceeding at least until the child attains eighteen years of age. Upon appropriate request by a court or law enforcement official of another state, the court shall forward a certified copy of those records.
Matter of Woods v. Woods, 2008 NY Slip Op 9410, ¶ 3, 56 A.D.3d 789, 791, 868 N.Y.S.2d 272, 274 (App. Div. 2nd Dept.)
Under these circumstances, we reverse the order appealed from, and remit the matter to the Family Court, Richmond County, which shall immediately communicate with the Pennsylvania court, provide that court with the ACS reports and all pleadings, orders, court-ordered investigations, and other pertinent records from the instant proceeding (cf. Domestic Relations Law § 75-k), and redetermine the father’s motion to dismiss the petition.
DRL 75-L – Domestic Relations Law 75-L
1. During the period of time that a parent is activated, deployed or temporarily assigned to military service, such that the parent’s ability to continue as a joint caretaker or the primary caretaker of a minor child is materially affected by such military service, any orders issued pursuant to this article, based on the fact that the parent is activated, deployed or temporarily assigned to military service, which would materially affect or change a previous judgment or order regarding custody of that parent’s child or children as such judgment or order existed on the date the parent was activated, deployed, or temporarily assigned to military service shall be subject to review pursuant to subdivision three of this section. Any relevant provisions of the Service Member’s Civil Relief Act shall apply to all proceedings governed by this section.
2. During such period the court may enter an order to modify custody if there is clear and convincing evidence that the modification is in the best interests of the child. An attorney for the child shall be appointed in all cases where a modification is sought during such military service. Such order shall be subject to review pursuant to subdivision three of this section. When entering an order under this section, the court shall consider and provide for, if feasible and if in the best interests of the child, contact between the military service member and his or her child including, but not limited to, electronic communication by e-mail, webcam, telephone, or other available means. During the period of the parent’s leave from military service, the court shall consider the best interests of the child when establishing a parenting schedule, including visiting and other contact. For such purpose, a “leave from service” shall be a period of not more than three months.
3. Unless the parties have otherwise stipulated or agreed, if an order is issued under this section, the return of the parent from active military service, deployment or temporary assignment shall be considered a substantial change in circumstances. Upon the request of either parent, the court shall determine on the basis of the child’s best interests whether the custody judgment or order previously in effect should be modified.
4. This section shall not apply to assignments to permanent duty stations or permanent changes of station.
Matter of Hughes v. Davis, 2009 NY Slip Op 9760, ¶ 1, 68 A.D.3d 1674, 1675, 890 N.Y.S.2d 874, 875 (App. Div. 4th Dept.)
It is well settled that, in seeking to modify an existing order of custody, “[t]he petitioner must make a sufficient evidentiary showing of a change in circumstances to require a hearing on the issue whether the existing custody order should be modified” (Matter of Di Fiore v Scott, 2 AD3d 1417, 1417-1418, 770 NYS2d 248 [2003], [internal quotation marks omitted]).
Pursuant to Family Court Act § 651 (f) (3), “the return of the parent from active military service, deployment or temporary assignment shall be considered a substantial change in circumstances. Upon the request of either parent, the court shall determine on the basis of the child’s best interests whether the custody judgment or order previously in effect should be modified” (see Domestic Relations Law § 75-l [3]; § 240 [1] [a-2] [3]).
Here, the mother alleged that she had returned from active military duty and thus made a sufficient evidentiary showing of a substantial change in circumstances (see generally Di Fiore, 2 AD3d 1417, 770 NYS2d 248 [2003]).
DRL 75-M – Domestic Relations Law 75-M
The court may not deny or decide a petition for guardianship, custody or visitation solely on the basis that the petitioner is blind. The blindness of the petitioner shall be considered relevant only to the extent that the court finds, based on evidence in the record, that the blindness affects the best interests of the child whose guardianship, custody or visitation is the subject of the petition.
As used in this section, “blind” or “blindness” means:
vision that is 20/200 or less in the best corrected eye; or
vision that subtends an angle of not greater than twenty degrees in the best corrected eye.
2 NY Practice Guide: Domestic Relations § 35.08
Questions relevant to party status, pursuant to the UCCJA (D.R.L. Article 5-A), were addressed in S. v. B., 102 Misc. 2d 650, 424 N.Y.S.2d 613 (Fam. Ct. Schenectady Co. 1980), and in Campney v. Ayala, 115 Misc. 2d 381, 454 N.Y.S.2d 207 (Fam. Ct. Washington Co. 1982). In Priscilla S. v. Albert B., above, the court held that a cousin who had physical custody of a child had to be treated as a party pursuant to D.R.L. §§ 75-e and 75-k, as a matter of due process of law (as well as under D.R.L. § 75-m, which makes New York custody decrees binding on parties who have had notice and the opportunity to be heard), in any proceeding affecting the custody of the child, and had to be provided with notice and opportunity to be heard.
In Campney v. Ayala, above, the nonparent having physical custody was a former neighbor, who had in effect abducted the child from California to New York. Although this nonparent, as petitioner, was a party to the custody proceeding, the court refused to treat the abducting party as a “person acting as parent” within the meaning of D.R.L. § 75-c(9) or the “home state” definition of D.R.L. § 75-c(5), and refused to consider the period of time the child had lived with the nonparent in New York as a basis for establishing New York “home state” jurisdiction under D.R.L. § 75-d(1)(a).
The court held that for a person to have a valid claim for a right to custody, merely physical custody (D.R.L. § 75-c(8)) was insufficient, in the absence of an underlying substantive right.
As is the case with other provisions of D.R.L. Article 5-A, the provisions relating to party status await further judicial interpretation.
A custody decree rendered by a New York court having custody jurisdiction pursuant to D.R.L. § 75-d is declared by D.R.L. § 75-m to be binding on all the parties who have either been personally served in the State of New York, or have been provided with notice in accordance with D.R.L. § 75-f, or have submitted to the jurisdiction of the New York court, and who have been given an opportunity to be heard.
Further pursuant to D.R.L. § 75-m, as to all such parties, the custody decree is deemed to be conclusive as to all issues of fact and law decided, and as to the custody determination made, unless and until that determination is modified in accordance with applicable law, which law includes D.R.L. Article 5-A.
The provisions of D.R.L. § 75-m, declaring the binding nature of New York custody determinations, provide the necessary legal basis for imposing a duty on other states to enforce such custody decrees pursuant to the UCCJA.