DRL 76 Domestic Relations Law 76
LeBoeuf v. Greene, 2023 NY Slip Op 02870, ¶¶ 1-2, 216 A.D.3d 1149, 1149-52, 190 N.Y.S.3d 118, 119-22 (App. Div. 2nd Dept.)
Except as otherwise provided in section seventy-six-c of this title, a court of this state has jurisdiction to make an initial child custody determination only if:
(a) 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;
(b) a court of another state does not have jurisdiction under paragraph (a) of this subdivision, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section seventy-six-f or seventy-six-g of this title, and:
(i) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(ii) substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
(c) all courts having jurisdiction under paragraph (a) or (b) of this subdivision have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section seventy-six-f or seventy-six-g of this title; or
(d) no court of any other state would have jurisdiction under the criteria specified in paragraph (a), (b) or (c) of this subdivision.
Subdivision one of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.
LeBoeuf v. Greene, 2023 NY Slip Op 02870, 216 A.D.3d 1149, 190 N.Y.S.3d 118 (App. Div. 2nd Dept.)
ORDERED that on Court’s own motion, the notice of appeal from the order is deemed an application for leave to appeal, and is granted (see CPLR 5701[c]); and it is further,
ORDERED that the order is reversed, on the law, facts, and in the exercise of discretion,
ORDERED that one bill of costs is awarded to the appellant.
The parties, never married, are the parents of one child, born in 2017. In 2019, the mother commenced this proceeding pursuant to Domestic Relations Law §§ 76(1)(a) and 240, seeking, sole legal and residential custody of the parties’ child. In 2020, parties entered a stipulation resolving all issues raised in the petition by, giving the mother final decision-making authority and residential custody of the child, with parental access to the father.
In September 2020, mother moved to modify based upon the father’s alleged misrepresentations to her that in August 2020 he drove with the child to visit his parents in Alabama when he in fact flew with the child.
Finally, the statements made by the father in his affidavit in opposition to the mother’s motion to modify the stipulation did not constitute “material factual statements that are false” within the meaning of 22 NYCRR 130-1.1(c)(3).
DRL 76-A Domestic Relations Law 76-A
Except as otherwise provided in section seventy-six-c of this title, a court of this state which has made a child custody determination consistent with section seventy-six or seventy-six-b of this title has exclusive, continuing jurisdiction over the determination until:
(a) a court of this state determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
(b) a court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.
A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section seventy-six of this title.
Matter of Sutton v. Rivera, 2021 NY Slip Op 07548, ¶ 2, 200 A.D.3d 1048, 1049-50, 155 N.Y.S.3d 810, 811-12 (App. Div. 2nd Dept.)
The Supreme Court should not have summarily determined, without a hearing, that it lacked exclusive, continuing jurisdiction on the ground that the children had been residing in Florida and Hawaii (see Matter of Ralph E.B. v Jovonna K.F., 173 AD3d 854, 105 N.Y.S.3d 444; Pyronneau v Pyronneau, 130 AD3d 707, 708, 11 N.Y.S.3d 881).
The court made the initial custody determination for the children in conformity with the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter UCCJEA) and, therefore, would ordinarily retain exclusive continuing jurisdiction pursuant to Domestic Relations Law § 76-a (see Matter of Ralph E.B. v Jovonna K.F., 173 AD3d at 854; Pyronneau v Pyronneau, 130 AD3d at 708; Matter of Ramirez v Gunder, 108 AD3d 563, 564, 968 N.Y.S.2d 183; Matter of Elbakri v Farag, 71 AD3d 767, 768, 895 N.Y.S.2d 732).
In order to determine the issue of whether it lacked exclusive continuing jurisdiction pursuant to Domestic Relations Law § 76-a(1)(a), the court should have afforded the parties an opportunity to present evidence as to whether the children had maintained a significant connection with New York, and whether substantial evidence was available in New York concerning the children’s “care, protection, training, and personal relationships” (see Matter of Ralph E.B. v Jovonna K.F., 173 AD3d at 854; Pyronneau v Pyronneau, 130 AD3d at 708; Matter of Ramirez v Gunder, 108 AD3d at 564; Matter of Elbakri v Farag, 71 AD3d at 767).
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).
The father’s remaining contentions are either not properly before us or without merit.
DRL 76-B Domestic Relations Law 76-B
Except as otherwise provided in section seventy-six-c of this title, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under paragraph (a) or (b) of subdivision one of section seventy-six of this title and:
1. The court of the other state determines it no longer has exclusive, continuing jurisdiction under section seventy-six-a of this title or that a court of this state would be a more convenient forum under section seventy-six-f of this title; or
2. A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.
Matter of McKissen v. DeLeon, 2023 NY Slip Op 01434, ¶¶ 1-2, 214 A.D.3d 1367, 1368-69, 185 N.Y.S.3d 849, 851-52 (App. Div. 4th Dept.)
We reject the mother’s contention in appeal Nos. 2 and 3 that Family Court lacked jurisdiction to modify the Florida determination. As relevant here, Domestic Relations Law § 76-b provides that “a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under [section 76 (1) (a) or (b)] and: 1.
The court of the other state determines it no longer has exclusive, continuing jurisdiction under [section 76-a] or that a court of this state would be a more convenient forum under [section 76-f]; or 2. A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.”
Thus, the first step in the analysis here is to determine whether a New York court would have jurisdiction to make an initial custody determination under Domestic Relations Law § 76 (1) (a) or (b). For purposes of section 76-b, we conclude that a New York court would have had jurisdiction to make an initial custody determination pursuant to section 76 (1) (a) inasmuch as New York was the “home state of the child on the date of the commencement of the proceeding” (§ 76 [1] [a]). The record establishes that the child had been living in New York for more than six months at the time the father commenced the modification proceeding (see § 75-a [7]).
Next, contrary to the mother’s contention, the court had jurisdiction to modify the Florida determination pursuant to Domestic Relations Law § 76-b (2) because neither the child nor the child’s parents resided in the State of Florida.
It is undisputed that the child and the father were not Florida residents, and the record supports the conclusion that, although the mother was staying in Florida, she maintained her residence in New York (see generally Yaniveth R. v LTD Realty Co., 27 NY3d 186, 192-193, 32 N.Y.S.3d 10, 51 N.E.3d 521 [2016]; Matter of Briggs v Briggs, 171 AD3d 741, 743, 97 N.Y.S.3d 721 [2d Dept 2019]).
DRL 76-C Domestic Relations Law 76-C
A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child, a sibling or parent of the child.
If there is no previous child custody determination that is entitled to be enforced under this article and a child custody proceeding has not been commenced in a court of a state having jurisdiction under sections seventy-six through seventy-six-b of this title, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under sections seventy-six through seventy-six-b of this title. Where the child who is the subject of a child custody determination under this section is in imminent risk of harm, any order issued under this section shall remain in effect until a court of a state having jurisdiction under sections seventy-six through seventy-six-b of this title has taken steps to assure the protection of the child. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under sections seventy-six through seventy-six-b of this title, a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.
If there is a previous child custody determination that is entitled to be enforced under this article, or a child custody proceeding has been commenced in a court of a state having jurisdiction under sections seventy-six through seventy-six-b of this title, any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under sections seventy-six through seventy-six-b of this title. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires, provided, however, that where the child who is the subject of a child custody determination under this section is in imminent risk of harm, any order issued under this section shall remain in effect until a court of a state having jurisdiction under sections seventy-six through seventy-six-b of this title has taken steps to assure the protection of the child.
A court of this state which has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under sections seventy-six through seventy-six-b of this title, shall immediately communicate with the other court. A court of this state which is exercising jurisdiction pursuant to sections seventy-six through seventy-six-b of this title, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.
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, 740-41 (App. Div. 2nd Dept.)
The parties have one son, born in March 2009, who has resided in Guatemala with the mother since birth. The father lives in New York. On June 20, 2021, the mother and the child came to the United States on tourist visas. On July 6, 2021, the child came to New York to visit the father.
Thereafter, in October 2021, when the father allegedly refused to return the child to the mother, the mother filed two petitions for writs of habeas corpus which were later “marked satisfied.” On October 13, 2021, the father moved, by order to show cause, requesting the Family Court to exercise temporary emergency jurisdiction over the child pursuant to Domestic Relations Law § 76-c; he also filed a petition for custody of the child.
On October 25, 2021, the mother cross-petitioned for custody. A report dated November 9, 2021, was issued following a hearing before a referee. Subsequently, the court confirmed the referee’s finding that New York is not the child’s home state and that there was no basis for the court to exercise temporary emergency jurisdiction.
In an order dated December 8, 2021, the court, inter alia, in effect, dismissed the father’s petition on the ground that it lacked jurisdiction and directed that the child be released to the physical custody of the mother for the purpose of returning to Guatemala, the child’s home state.
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).
Here, when the parties commenced their custody proceedings in October 2021, Guatemala was the child’s home state for the purposes of the statute, and New York had never been the home state of the child. The Family Court therefore lacked jurisdiction to make an initial custody determination (see Domestic Relations Law § 76[1][a]; Matter of Gathiaka v Mubea, 202 AD3d at 678; Matter of Slade v White, 133 AD3d 767, 768, 21 N.Y.S.3d 266).
Moreover, the father’s unsubstantiated allegations were insufficient to require or warrant the invocation of the Family Court’s emergency jurisdiction pursuant to Domestic Relations Law § 76-c (see Matter of Hearne v Hearne, 61 AD3d 758, 759, 878 N.Y.S.2d 81; Matter of Randall v Randall, 305 AD2d 512, 513, 759 N.Y.S.2d 537).
Further, the Family Court properly directed that the child be released to the physical custody of the mother for the purpose of returning to Guatemala, his home state (see Valentin v Valentin, 167 AD2d 390, 391, 561 N.Y.S.2d 805; Matter of Michael P. v Diana G., 156 AD2d 59, 68, 553 N.Y.S.2d 689).
DRL 76-D Domestic Relations Law 76-D
Before a child custody determination is made under this article, notice and an opportunity to be heard in accordance with the standards of section seventy-five-g of this article must be given to all persons entitled to notice under the law of this state as in child custody proceedings between residents of this state, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.
This article does not govern the enforceability of a child custody determination made without notice or an opportunity to be heard.
The obligation to join a party and the right to intervene as a party in a child custody proceeding under this article are governed by the laws of this state as in child custody proceedings between residents of this state.
Jason V. v. Katarina W., 2019 NY Slip Op 07664, ¶ 1, 176 A.D.3d 1440, 1441-42, 113 N.Y.S.3d 306, 307-08 (App. Div. 3rd Dept.)
We affirm. “A motion to renew must be based on new facts not previously offered that would change the prior determination and must contain a reasonable justification for the failure to present such facts on the original motion” (Matter of James H. Supplemental Needs Trusts, 172 AD3d 1570, 1574, 101 NYS3d 477 [2019] [citations omitted]; see CPLR 2221 [e]; Mula v Mula, 151 AD3d 1326, 1327, 59 NYS3d 146 [2017]).
The husband opposed the wife’s enforcement application by arguing, as is pertinent here, that it was ex parte and that the UCCJEA “does not govern the enforceability of a child custody determination made without notice or an opportunity to be heard” (Domestic Relations Law § 76-d [2]).
Supreme Court (McGinty, J.) disagreed and issued an enforcement order, determining that the husband’s appeal from the temporary order afforded him an opportunity to be heard. The Slovak Supreme Court thereafter annulled the decision of the Regional Court and remitted so that the husband could receive English translations of certain documents to which he was entitled and have a full opportunity to prosecute his appeal.
Contrary to the wife’s contention, this subsequent legal development could potentially warrant renewal (see CPLR 2221 [e] [2]; Spierer v Bloomingdale’s, 59 AD3d 267, 267, 873 NYS2d 66 [2009], lv denied 13 NY3d 713 [2009]).
With regard to the 2016 order, Supreme Court (McGinty, J.) denied the husband’s first renewal motion and stayed the proceedings before it to await further developments in the Slovak courts. Inasmuch as Supreme Court was advised that the husband’s appeal before the Regional Court was pending and that there was ongoing activity in the preexisting Slovak divorce proceeding (see Concord Assoc., L.P. v EPT Concord, LLC, 101 AD3d 1574, 1575, 957 NYS2d 509 [2012]; Canadian Imperial Bank of Commerce v Commonwealth Ins. Co., 19 AD3d 211, 212, 797 NYS2d 449 [2005]), and noting the lack of detail as to how the Regional Court’s delay in hearing the husband’s appeal deprived him of the opportunity to be heard that justified enforcement of the temporary order (see CPLR 2221 [e] [2]), we cannot say that Supreme Court abused its discretion in doing either.
As for the second renewal motion that led to the 2018 order, the husband failed to point to any new developments “that would change the prior determination” and, indeed, acknowledged that the Regional Court had again upheld the temporary order in relevant part and that a Slovak divorce judgment had been issued and was being appealed by both parties (CPLR 2221 [e] [2]). Thus, Supreme Court (Fisher, J.) did not abuse its discretion in denying that motion and reinstating the stay.
DRL 76-E Domestic Relations Law 76-E
Except as otherwise provided in section seventy-six-c of this title, a court of this state may not exercise its jurisdiction under this title if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this article, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under section seventy-six-f of this title.
Except as otherwise provided in section seventy-six-c of this title, a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to section seventy-six-h of this title. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this article, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this article does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.
In a proceeding to modify a child custody determination, a court of this state shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child custody determination has been commenced in another state, the court may:
(a) stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement:
(b) enjoin the parties from continuing with the proceeding for enforcement; or
(c) proceed with the modification under conditions it considers appropriate.
Matter of Touchet v. Horstman, 2022 NY Slip Op 04633, ¶¶ 1-2, 207 A.D.3d 639, 639-41, 172 N.Y.S.3d 82, 83-84 (App. Div. 2nd Dept.)
Under the Uniform Child Custody Jurisdiction and Enforcement Act (see Domestic Relations Law art 5-A), which California also has adopted (see Cal Fam Code § 3400 et seq.), a New York court “may not exercise its jurisdiction” in a child custody proceeding “if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with [Domestic Relations Law article 5-A], unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum” (Domestic Relations Law § 76-e[1]; see Matter of Vashon H. v Bret I., 191 AD3d 1120, 1121, 143 N.Y.S.3d 119; Matter of Frankel v Frankel, 127 AD3d 1186, 1187-1188, 7 N.Y.S.3d 531).
“If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with [Domestic Relations Law article 5-A], the court of this state shall stay its proceeding and communicate with the court of the other state” (Domestic Relations Law § 76-e[2]; see id. § 77-f; Matter of Quevedo v Overholser, 187 AD3d 923, 924-925, 130 N.Y.S.3d 373; Matter of Frankel v Frankel, 127 AD3d at 1188).
“If the court of the state having jurisdiction substantially in accordance with [Domestic Relations Law article 5-A] does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding” (Domestic Relations Law § 76-e[2]; see Matter of Quevedo v Overholser, 187 AD3d at 925; Matter of Frankel v Frankel, 127 AD3d at 1188).
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 76-F Domestic Relations Law 76-F
A court of this state which has jurisdiction under this article to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the child or the child’s attorney, or upon the court’s own motion, or request of another court.
Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(a) whether domestic violence or mistreatment or abuse of a child or sibling has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(b) the length of time the child has resided outside this state;
(c) the distance between the court in this state and the court in the state that would assume jurisdiction;
(d) the relative financial circumstances of the parties;
(e) any agreement of the parties as to which state should assume jurisdiction;
(f) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(g) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(h) the familiarity of the court of each state with the facts and issues in the pending litigation.
If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.
A court of this state may decline to exercise its jurisdiction under this article if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.
Matter of Feltz v. Yanucil, 2023 NY Slip Op 00571, ¶¶ 1-2, 213 A.D.3d 1246, 1246-47, 182 N.Y.S.3d 836, 837-38 (App. Div. 4th Dept.)
Memorandum: Petitioner father and respondent mother are the parents of two children who live with the mother in Mercer County, New Jersey. Pursuant to a prior custody order, the mother has sole legal and primary physical custody of the children.
The father filed a petition seeking modification of the prior custody order and two violation petitions, and the mother moved to dismiss those petitions on, inter alia, the ground that New York is an inconvenient forum under Domestic Relations Law § 76-f.
Family Court determined that New York is an inconvenient forum and therefore issued an order granting the motion to the extent of staying the instant proceedings pending the commencement of custody and visitation proceedings in Mercer County, New Jersey.
Initially, we agree with the mother that the order staying the father’s petitions is not appealable as of right (see Family Ct Act § 1112 [a]; Matter of Jeremy A. v Vianca G., 120 AD3d 1147, 1147, 993 N.Y.S.2d 29 [1st Dept 2014]; see generally Matter of Steeno v Szydlowski, 181 AD3d 1224, 1225, 120 N.Y.S.3d 668 [4th Dept 2020]).
Although the father did not request leave to appeal, we nevertheless treat the notice of appeal as an application for leave to appeal and, in the exercise of our discretion, we grant the application (see Matter of Danielle E.P. v Christopher N., 208 AD3d 978, 978, 172 N.Y.S.3d 782 [4th Dept 2022], lv denied 39 NY3d 904 [2022]; see generally § 1112 [a]).
We reject the father’s contention that the court erred in granting the motion to the extent of staying the proceedings on the ground of inconvenient forum and in declining to exercise its jurisdiction in this matter.
“In determining whether the state that has jurisdiction is an inconvenient forum, a court should consider such factors as ‘the length of time the child[ren have] resided outside th[e] state’ (Domestic Relations Law § 76-f [2] [b]), ‘the nature and location of the evidence required to resolve the pending litigation, including testimony of the child[ren]’ (§ 76-f [2] [f]), and ‘the familiarity of the court of each state with the facts and issues in the pending litigation’ (§ 76-f [2] [h])” (Clark v Clark, 21 AD3d 1326, 1327, 801 N.Y.S.2d 863 [4th Dept 2005]).
Here, we conclude that the court, after considering all of the factors, properly exercised its discretion in determining that New Jersey was a more appropriate forum for these proceedings (see Matter of Dei v Diew, 56 AD3d 1212, 1213, 868 N.Y.S.2d 439 [4th Dept 2008]; Clark, 21 AD3d at 1327-1328).
DRL 76-G Domestic Relations Law 76-G
Except as otherwise provided in section seventy-six-c of this title or by other law of this state, if a court of this state has jurisdiction under this article because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:
(a) the parents and all persons acting as parents have acquiesced in the exercise of jurisdiction;
(b) a court of the state otherwise having jurisdiction under sections seventy-six through seventy-six-b of this title determines that this state is a more appropriate forum under section seventy-six-f of this title; or
(c) no court of any other state would have jurisdiction under the criteria specified in sections seventy-six through seventy-six-b of this title.
If a court of this state declines to exercise its jurisdiction pursuant to subdivision one of this section, it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the unjustifiable conduct, including staying the proceeding until a child custody proceeding is commenced in a court having jurisdiction under sections seventy-six through seventy-six-b of this title.
If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction pursuant to subdivision one of this section, it shall assess against the party seeking to invoke its jurisdiction necessary and reasonable expenses including costs, communication expenses, attorney’s fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be inappropriate. No fees, costs or expenses shall be assessed against a party who is fleeing an incident or pattern of domestic violence or mistreatment or abuse of a child or sibling, unless the court is convinced by a preponderance of evidence that such assessment would be clearly appropriate. The court may not assess fees, costs, or expenses against this state unless authorized by law other than this article.
In making a determination under this section, a court shall not consider as a factor weighing against the petitioner any taking of the child, or retention of the child after a visit or other temporary relinquishment of physical custody, from the person who has legal custody, if there is evidence that the taking or retention of the child was to protect the petitioner from domestic violence or the child or sibling from mistreatment or abuse.
Gottlieb v. Gottlieb, 2013 NY Slip Op 1330, ¶¶ 1-2, 103 A.D.3d 593, 593-95, 960 N.Y.S.2d 101 (App. Div. 1st Dept.)
Order, Supreme Court, New York County (Ellen Gesmer, J.), entered January 11, 2012, which, following an interim order, same court and Justice, entered on or about December 6, 2011, granting plaintiff’s motion to declare New York the home state of the parties’ children and denying defendant’s motion to decline jurisdiction pursuant to the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) in the underlying child custody proceeding, directed defendant to return the children to New York, unanimously affirmed, without costs.
Appeal from December 6, 2011 order unanimously dismissed, without costs, as subsumed in the appeal from the January 11, 2012 order.
Defendant does not dispute that the trial court correctly determined that New York was the home state based on the fact that both children lived in New York for more than six consecutive months before the commencement of child custody proceedings (see Domestic Relations Law §§ 75-a [7], 76 [1] [a]).
Indeed, the children had never lived outside of New York until July 3, 2011, when they moved with defendant to North Carolina, and their mother continues to reside in New York. Moreover, the UCCJEA “elevates the home state’ to paramount importance in both initial custody determinations and modifications of custody orders” (Matter of Michael McC. v Manuela A., 48 AD3d 91, 95, 848 NYS2d 147 [1st Dept 2007], lv dismissed 10 NY3d 836, 889 NE2d 485, 859 NYS2d 607 [2008]).
Contrary to defendant’s assertions, Supreme Court properly weighed all factors relevant to a determination whether North Carolina was a more appropriate forum and properly concluded that it was not (see Domestic Relations Law § 76-f [1], [2]).
Among other things, the court weighed defendant’s superior financial circumstances and the much shorter length of time the children resided in North Carolina, as well as the fact that the majority of witnesses and documents are located in New York, including evidence relevant to the parents’ allegations of misconduct against each other.
In addition, defendant himself seemed to acknowledge that New York was a more appropriate forum to look into allegations of abuse and neglect of his daughter, which are relevant to any custody determination, because he reported these allegations to the New York City Administration for Children’s Services, although he claimed to have learned of the alleged abuse only after moving to North Carolina.
The court also gave proper weight to plaintiff’s claims that defendant moved the children to North Carolina without her consent, and thus engaged in “unjustifiable conduct,” which, if true, would obligate the North Carolina court to decline jurisdiction (see Domestic Relations Law § 76-g).
Without making any determination whether defendant engaged in such conduct, the court observed, correctly, that if a determination were made that he did so, North Carolina would have no basis for continuing jurisdiction, whereas there are no such potential hindrances to jurisdiction in New York.
DRL 76-H Domestic Relations Law 76-H
Subject to subdivision five of this section, in a child custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child’s present address or whereabouts, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit must state whether the party:
(a) has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child custody determination, if any;
(b) knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding; and
(c) knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons.
If the information required by subdivision one of this section is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.
If the declaration as to any of the items described in paragraphs (a) through (c) of subdivision one of this section is in the affirmative, the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and other matters pertinent to the court’s jurisdiction and the disposition of the case.
Each party has a continuing duty to inform the court of any proceeding in this or any other state that could affect the current proceeding.
Upon a finding, which may be made ex parte, that the health or safety of a party or child would be unreasonably put at risk by the disclosure of identifying information, or if an existing order so provides, a tribunal shall order that the address of the child or party or other identifying information not be disclosed in a pleading or other document filed in a proceeding under this article. Notwithstanding any other provision of law, if the party seeking custody of the child has resided or resides in a residential program for victims of domestic violence as defined in section four hundred fifty-nine-a of the social services law, the present address of the child and the present address of the party seeking custody and the address of the residential program for victims of domestic violence shall not be revealed. Upon making an order that the address of the child or party or other identifying information not be disclosed, the court shall designate the clerk of the court or such other disinterested person as the agent for service of process for the party whose address is to remain confidential and shall notify the adverse party of such designation in writing. The clerk or disinterested person designated by the court shall, when served with process on behalf of the party whose address is to remain confidential, promptly notify such party whose address is to remain confidential and forward such process to him or her. The party whose address is to remain confidential shall inform the clerk of the court or disinterested person designated by the court of any change in address for purposes of receipt of service of process.
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N.Y. Dom. Rel. Law § 76-h (Consol., Lexis Advance through 2023 released Chapters 1-358)
Whenever a custody petition is filed in family court, pursuant to FCA § 651, or custody is at issue in a divorce, pursuant to . DRL § 240., the court will expect the parties to include their addresses, and the address of the child, in the moving papers. This is particularly true for interstate custody cases, where the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) requires every pleading to contain information about the whereabouts of the parties and the child. DRL § 76-h.. There are times, however, when the client has a good reason for keeping knowledge of his or her address B and even the whereabouts of the child B from the other parent. Particularly if there are safety reasons for the request, a court may order this information to be kept confidential.
N.Y. Dom. Rel. Law § 254 (Consol., Lexis Advance through 2023 released Chapters 1-358)
DRL 76-I Domestic Relations Law 76-I
In a child custody proceeding in this state, the court may order a party to the proceeding who is in this state to appear before the court in person with or without the child. The court may order any person who is in this state and who has physical custody or control of the child to appear in person with the child.
If a party to a child custody proceeding whose presence is desired by the court is outside this state, the court may order that a notice given pursuant to section seventy-five-g of this article include a statement directing the party to appear in person with or without the child and informing the party that failure to appear may result in a decision adverse to the party.
The court may enter any orders necessary to ensure the safety of the child and of any person ordered to appear under this section.
If a party to a child custody proceeding who is outside this state is directed to appear under subdivision two of this section or desires to appear personally before the court with or without the child, the court may require another party to pay reasonable and necessary travel and other expenses of the party so appearing and of the child.
1 LN AnswerGuide NY Family Court Proceedings § 13.16
A New York court in a custody proceeding may order the personal appearance of a party who is physically in the state. A person who is in New York and has physical control or custody of the child may be ordered to appear in person with the child. DRL § 76-i(3).
The court may order a party who is outside New York to appear in person with or without the child. When making such an order, the court must give notice as prescribed in DRL § 76-g. When directing the appearance of such party, the court may require another party to pay reasonable and necessary travel and other expenses of the out-of-state party and child. DRL § 76-i(4).