DRL 77 Domestic Relations Law 77
As used in this title:
“Petitioner” means a person who seeks enforcement of an order for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child custody determination.
“Respondent” means a person against whom a proceeding has been commenced for enforcement of an order for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child custody determination.
Matter of Wengenroth v McGuire
Reporter
127 A.D.3d 1278 *; 6 N.Y.S.3d 729 **; 2015 N.Y. App. Div. LEXIS 2842 ***; 2015 NY Slip Op 02818 ****
Overview
HOLDINGS: [1]-The court held that the Family Court properly dismissed a mother’s petition to enforce custody provisions of a divorce judgment for lack of jurisdiction because the mother permitted the child to move to Georgia with father, thus, neither child nor the father had a significant connection with New York, and under Domestic Relations Law § 76-a(1)(a), NY courts no longer had exclusive, continuing jurisdiction over the divorce judgment determining custody.
Opinion
We cannot accept mother’s argument that Family Court erred by failing to hold a hearing within three days of her filing of the petition. That requirement applies to the expedited enforcement of a custody determination (see Domestic Relations Law § 77-g [3]; see also Domestic Relations Law § 77-i). Inasmuch as the mother did not seek immediate return of the child, the court did not err in failing to adhere to that requirement here.
The mother’s main argument is that Family Court erred in applying title II of the UCCJEA, entitled “[j]urisdiction,” rather than title III, entitled “[e]nforcement.” While title III is not limited to enforcement of out-of-state custody determinations, and its “mechanisms . . . are presumptively available in any enforcement action” (Merril Sobie, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law § 77 at 563; see Domestic Relations Law § 77), several of the sections within title III do refer or apply to custody determinations issued by courts in other states (see e.g. Domestic Relations Law §§ 77-b, 77-d, 77-e, 77-l).
Similarly, title II has sections dealing with initial custody determinations and modification determinations (see Domestic Relations Law §§ 76, 76-b), neither of which is sought by the petition here, but the title overall is broader than those sections.
Simply because mother’s petition seeks enforcement of a custody determination, rather than modification, does not mean that the title addressing enforcement must be relied upon independently and exclusively, without any possible reference to addressing jurisdiction. Instead, courts can apply both the jurisdiction and enforcement portions of the UCCJEA, where applicable.
A New York court that made a child custody determination “has exclusive, continuing jurisdiction over the determination until . . . a court of this state determines that neither the child, [nor] the child and one 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” (Domestic Relations Law § 76-a [1] [a]).
Here, Family Court determined that the child had lived in Georgia with the father for more than two years and all of her medical and educational records and providers are in Georgia.* While the mother and other family members reside in New York, the child did not return to New York—for visitation or any other reason—during the years that she was living in Georgia (compare Matter of Mercado v Frye, 104 AD3d 1340, 1341, 961 NYS2d 717 [2013], lv denied 21 NY3d 859, 993 NE2d 758, 971 NYS2d 80 [2013]; Matter of King v King, 15 AD3d 999, 1000-1001, 790 NYS2d 339 [2005]).
Thus, neither the child nor the father had a significant connection with New York, and substantial evidence regarding “the child’s care, protection, training, and personal relationships” is located in Georgia rather than New York (Domestic Relations Law § 76-a [1] [a]).
According to the statute, after this determination, New York courts no longer have exclusive, continuing jurisdiction over the divorce judgment determining custody. Due to this determination, Family Court properly dismissed the mother’s petition for lack of jurisdiction (see Matter of Brown v Heubusch, 124 AD3d 1396, 1397, 1 NYS3d 695 [2015]; Matter of Maida v Capraro, 86 AD3d 924, 924, 926 NYS2d 790 [2011]).
DRL 77-A Domestic Relations Law 77-A
Under this act, a court of this state may enforce an order for the return of the child made under the Hague Convention on the Civil Aspects of International Child Abduction as if it were a child custody determination.
Here are a few key points to consider in understanding this statement:
Hague Convention on the Civil Aspects of International Child Abduction: The Hague Convention is an international treaty that aims to protect children from international abduction by a parent or guardian. It provides a legal framework for the prompt return of abducted children to their country of habitual residence.
Enforcement: The statement indicates that a court in a specific state is empowered to enforce an order for the return of a child issued under the Hague Convention. This means that if a child has been wrongfully removed or retained in violation of custody rights, the court can take action to secure the child’s return to their home country.
Treated as Child Custody Determination: The statement also mentions that the enforcement of the order under the Hague Convention is treated as if it were a child custody determination. This implies that the legal procedures and considerations related to child custody, such as best interests of the child, may apply when enforcing the order under the Convention.
Interstate Cooperation: This provision likely highlights the importance of cooperation between the state’s legal system and international treaty obligations like the Hague Convention. It ensures that the state’s courts can play a role in facilitating the return of abducted children in accordance with international law.
Overall, this statement signifies the state’s commitment to upholding its obligations under the Hague Convention and underscores the seriousness with which it takes cases involving international child abduction, treating them with the same level of importance as domestic child custody matters
DRL 77-B Domestic Relations Law 77-B
A court of this state shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this article or the determination was made under factual circumstances meeting the jurisdictional standards of this article and the determination has not been modified in accordance with this article; provided, however, that recognition and enforcement of the determination would not violate subdivision one-c of section two hundred forty of this chapter or section one thousand eighty-five of the family court act.
A court of this state may utilize any remedy available under other law of this state to enforce a child custody determination made by a court of another state. The remedies provided in this title are cumulative and do not affect the availability of other remedies to enforce a child custody determination.
Matter of Sedina V. L. v. Markis R. C., 2021 NY Slip Op 05925, ¶ 1, 198 A.D.3d 599, 599-600, 153 N.Y.S.3d 842, 842-43 (App. Div. 1st Dept.)
Application by father’s assigned counsel to withdraw is granted (see Anders v California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 [1967]; People v Saunders, 52 AD2d 833, 384 N.Y.S.2d 161 [1st Dept 1976]). A review of the record demonstrates that there are no nonfrivolous issues that could be raised on this appeal.
The writ of habeas corpus was issued to recognize and enforce a temporary order of the Arizona court awarding the mother residential custody of the subject children (see Domestic Relations Law § 77-b). Respondent appeared and participated in the hearing held by the Arizona court, thus submitting to the court’s jurisdiction, and failed to provide any basis for New York to exercise emergency jurisdiction under Domestic Relations Law § 76-c.
We note that the mother’s request to strike portions of assigned counsel’s brief is not properly before us since she did not move for such relief. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
DRL 77-C Domestic Relations Law 77-C
A court of this state which does not have jurisdiction to modify a child custody determination, may, if consistent with subdivision one-c of section two hundred forty of this chapter or section one thousand eighty-five of the family court act, issue a temporary order enforcing:
(a) a visitation schedule made by a court of another state; or
(b) the visitation provisions of a child custody determination of another state that does not provide for a specific visitation schedule.
If a court of this state makes an order under paragraph (b) of subdivision one of this section, it shall specify in the order a period that it considers adequate to allow the petitioner to obtain an order from a court having jurisdiction under the criteria specified in title two of this article. The order remains in effect until an order is obtained from the other court or the period expires.
Matter of Adams v. Clouse, 2018 NY Slip Op 07007, 165 A.D.3d 1401, 1402, 86 N.Y.S.3d 269, 271 (App. Div. 3rd Dept.)
Additionally, a court in New York may, even in the absence of jurisdiction to modify a custody determination, issue a temporary order that enforces a determination made in another state regarding parenting time (see Domestic Relations Law § 77-c; Merril Sobie, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law § 77-b at 570).
DRL 77-D Domestic Relations Law 77-D
A child custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement, by sending to the appropriate court in this state;
(a) a letter or other document requesting registration;
(b) two copies, including one certified copy, of the determination sought to be registered, and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration the order has not been modified; and
(c) except as otherwise provided in section seventy-six-h of this article, the name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody or visitation in the child custody determination sought to be registered.
On receipt of the documents required by subdivision one of this section, the registering court shall:
(a) cause the determination to be filed as a foreign judgment, together with one copy of any accompanying documents and information, regardless of their form; and
(b) serve notice upon the persons named pursuant to subdivision one of this section and provide them with an opportunity to contest the registration in accordance with this section.
The notice required by paragraph (b) of subdivision two of this section must state that:
(a) a registered determination is enforceable as of the date of the registration in the same manner as a determination issued by a court of this state;
(b) a hearing to contest the validity of the registered determination must be requested within twenty days after service of notice; and
(c) failure to contest the registration will result in confirmation of the child custody determination and preclude further contest of that determination with respect to any matter that could have been asserted.
A person seeking to contest the validity of a registered order must request a hearing within twenty days after service of the notice. At that hearing, the court shall confirm the registered order unless the person contesting registration establishes that:
(a) the issuing court did not have jurisdiction under title two of this article;
(b) the child custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so under title two of this article; or
(c) the person contesting registration was entitled to notice, but notice was not given in accordance with the standards of section seventy-five-g of this article, in the proceedings before the court that issued the order for which registration is sought.
If a timely request for a hearing to contest the validity of the registration is not made, the registration is confirmed as a matter of law and the person requesting registration and all persons served must be notified of the confirmation.
Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.
Matter of Bryant v. Kepler, 2023 NY Slip Op 00757, ¶ 1, 213 A.D.3d 1291, 1291-92, 181 N.Y.S.3d 922, 923 (App. Div. 4th Dept.)
We conclude that the appeal must be dismissed because it was not taken from an order of disposition and, therefore, is not appealable as of right (see Family Ct Act § 1112; see generally Matter of Cheyenne C. [James M.], 185 AD3d 1517, 1518, 126 N.Y.S.3d 292 [4th Dept 2020], lv denied 35 NY3d 917 [2020]; Matter of James L. [appeal No. 2], 74 AD3d 1775, 1775 [4th Dept 2010]). Specifically, the order on appeal expressly reserves to respondents the right to renew their request for a hearing pursuant to Domestic Relations Law § 77-d challenging petitioners’ application to register the order entered in Florida. Consequently, the order is not dispositional—i.e., final (see Ocasio v Ocasio, 49 AD2d 801, 801, 373 N.Y.S.2d 702, 373 N.Y.S.2d 762 [4th Dept 1975], appeal dismissed 37 NY2d 921 [1975])—inasmuch as it “did not dispose of all the factual and legal issues raised in this action” (Abasciano v Dandrea, 83 AD3d 1542, 1544, 924 N.Y.S.2d 696 [4th Dept 2011] [internal quotation marks omitted]; see Town of Coeymans v Malphrus, 252 AD2d 874, 875, 676 N.Y.S.2d 347 [3d Dept 1998]).
DRL 77-E Domestic Relations Law 77-E
A court of this state may grant any relief normally available under the laws of this state to enforce a registered child custody determination made by a court of another state.
A court of this state shall recognize and enforce, but may not modify, except in accordance with title two of this article, a registered child custody determination of a court of another state; provided, however, that recognition and enforcement of the determination would not violate subdivision one-c of section two hundred forty of this chapter or section one thousand eighty-five of the family court act.
Matter of Paul JJ. v. Heather JJ., 2020 NY Slip Op 03434, ¶ 1, 184 A.D.3d 956, 958-60, 126 N.Y.S.3d 547, 551-53 (App. Div. 3rd Dept.)
Under the UCCJEA. “A court of this state shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with [the UCCJEA] . . . and the determination has not been modified” (Domestic Relations Law § 77-b [1]; see Matter of Adams v Clouse, 165 AD3d 1401, 1402, 86 NYS3d 269 [2018]).
Subject to exceptions not relevant here, a New York court must recognize and enforce a registered child custody order issued in another state, but may only modify such an order in accordance with title II of the UCCJEA, which includes Domestic Relations Law § 76-b (see Domestic Relations Law § 77-e [2]; 28 USC § 1738A).
Thus, New York is required to recognize and enforce the 2007 judgment even though its visitation provision would have been improper if issued by a New York court. Nevertheless, it is not disputed that, pursuant to Domestic Relations Law § 76-b, Family Court had jurisdiction to modify the 2007 judgment, as the mother and the child had lived in New York for more than six months (making it the child’s home state), the father did not live in Connecticut and the Connecticut court had relinquished jurisdiction pursuant to the UCCJEA.
The US Constitution’s Full Faith and Credit Clause requires all courts to give full faith and credit to the judicial proceedings in every other state (see US Const, art IV, § 1). When courts of this state uphold the validity of a foreign divorce decree, they must recognize all provisions of the decree, with exceptions for, among other things, the rare instance where a provision of the original decree violates the public policy of this state; in this context, public policy is not determined by reference to laws and court decisions alone, and “foreign judgments generally should be upheld unless enforcement would result in the recognition of a transaction which is inherently vicious, wicked or immoral, and shocking to the prevailing moral sense” (Greschler v Greschler, 51 NY2d 368, 377, 414 NE2d 694, 434 NYS2d 194 [1980] [internal quotation marks, emphasis and citation omitted]; see Badawi v Alesawy, 135 AD3d 792, 793, 24 NYS3d 683 [2016]; Chue v Clark, 46 Misc 3d 973, 983, 999 NYS2d 676 [Sup Ct, Monroe County 2014]). Stated otherwise, the [*960] Full Faith and Credit Clause “does not require the application of another [s]tate’s laws when they are ‘obnoxious’ to the forum [s]tate’s policy” (Crair v Brookdale Hosp. Med. Ctr., Cornell Univ., 94 NY2d 524, 528, 728 NE2d 974, 707 NYS2d 375 [2000]).
Although courts in our state cannot delegate authority to decide whether, or under what terms, a noncustodial parent may visit with his or her child, we do not deem an order containing such a delegation to be inherently vicious, wicked, shocking to our moral sense or obnoxious to this state’s public policy such that we would refuse to honor the order or its provisions (see Chue v Clark, 46 Misc 3d at 984).
Here, Family Court did not order an improper delegation of authority. Rather, Family Court simply declined to modify the 2007 judgment issued by a Connecticut court, which included a delegation of authority that was apparently proper in Connecticut but would not be proper if ordered by a New York court. Courts in this state will give full faith and credit to that judgment, and would be required to enforce it if asked to do so (see Domestic Relations Law §§ 77-b [1]; 77-e [2]).
DRL 77-F Domestic Relations Law 77-F
If a proceeding for enforcement under this title is commenced in a court of this state and the court determines that a proceeding to modify the determination is pending in a court of another state having jurisdiction to modify the determination under title two of this article, the enforcing court shall immediately communicate with the modifying court. The proceeding for enforcement continues unless the enforcing court, after consultation with the modifying court, stays or dismisses the proceeding.
Matter of Hollander v. Weissberg, 2017 NY Slip Op 00970, ¶ 1, 147 A.D.3d 831, 832, 47 N.Y.S.3d 356, 357 (App. Div. 2nd Dept.)
The parties lived in California, where they were married in September 2005. The parties’ son, who has special needs and various significant physical and cognitive disabilities, was born in 2006. A divorce judgment was entered in California on March 25, 2011, which incorporated the parties’ marital settlement agreement providing for joint custody of the child, with primary physical custody to the mother. An application by the mother to relocate with child to Israel was granted by a California court in an order dated March 13, 2013 (hereinafter the California order).
The California order also provided the father with a new visitation schedule with the child in the United States. Shortly thereafter, the mother moved to Israel with the child and the father relocated to New York.
The mother then filed a petition in the Israel Family Court seeking to modify the father’s visitation with the child, wherein she alleged an inability to obtain travel medical insurance for the child. The Israel Family Court issued a temporary stay with respect to visitation.
The father commenced a proceeding in the Family Court, Westchester County, to enforce the visitation rights awarded to him in the California order, as well as two related proceedings alleging that the mother had violated that order.
By this time, California had relinquished its continuing jurisdiction pertaining to issues of custody and visitation regarding the child. The mother moved to dismiss the father’s petitions pursuant to Domestic Relations Law § 77-f on the ground that a simultaneous proceeding was pending in the child’s “home state” of Israel.
In the order appealed from, the Family Court granted the mother’s motion to dismiss the father’s petitions based on lack of subject matter jurisdiction. We affirm.
DRL 77-G Domestic Relations Law 77-G
A petition under this title must be verified. Certified copies of all orders sought to be enforced and of any order confirming registration must be attached to the petition. A copy of a certified copy of an order may be attached instead of the original.
A petition for enforcement of a child custody determination must state:
(a) whether the court that issued the determination identified the jurisdictional basis it relied upon in exercising jurisdiction and, if so, what the basis was;
(b) whether the determination for which enforcement is sought has been vacated, stayed, or modified by a court whose decision must be enforced under this article and, if so, identify the court, the case number, and the nature of the proceeding;
(c) whether any proceeding has been commenced that could affect the current proceeding, including proceedings relating to domestic violence, child abuse or neglect, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding;
(d) the present physical address of the child and the respondent, if known;
(e) whether relief in addition to the immediate physical custody of the child and attorney’s fees is sought, including a request for assistance from law enforcement officials and, if so, the relief sought; and
(f) if the child custody determination has been registered and confirmed under section seventy-seven-d of this title, the date and place of registration.
Upon the filing of a petition, the court shall issue an order directing the respondent to appear in person with or without the child at a hearing within three court days and may enter any order necessary to ensure the safety of the parties and the child. The hearing must be held not more than three court days after the filing of the petition, provided that the petition has been served not less than twenty-four hours prior to the hearing. Service may be by any means directed by the court pursuant to section three hundred eight of the civil practice law and rules. The court may extend the date of the hearing briefly for good cause shown or upon the request of the petitioner.
An order issued under subdivision three of this section must state the time and place of the hearing and advise the respondent that at the hearing the court will order that the petitioner may take immediate physical custody of the child and the payment of fees, costs, and expenses under section seventy-seven-k of this title, and may schedule a hearing to determine whether further relief is appropriate, unless the respondent appears and establishes that:
(a) the child custody determination has not been registered and confirmed under section seventy-seven-d of this title and that:
(1) the issuing court did not have jurisdiction under title two of this article;
(2) the child custody determination for which enforcement is sought has been vacated, stayed, or modified by a court having jurisdiction to do so under title two of this article or that enforcement would violate subdivision one-c of section two hundred forty of this chapter or section one thousand eighty-five of the family court act;
(3) the respondent was entitled to notice, but notice was not given in accordance with the standards of section seventy-five-g of this article, in the proceedings before the court that issued the order for which enforcement is sought; or
(b) the child custody determination for which enforcement is sought was registered and confirmed under section seventy-seven-c of this title, but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under title two of this article.
Matter of Wengenroth v. McGuire, 2015 NY Slip Op 02818, ¶ 2, 127 A.D.3d 1278, 1279-80, 6 N.Y.S.3d 729, 731 (App. Div. 3rd Dept.)
Considering the mother’s demand, however, we cannot accept her current argument that Family Court erred by failing to hold a hearing within three days of her filing of the petition. That requirement applies to the expedited enforcement of a custody determination (see Domestic Relations Law § 77-g [3]; see also Domestic Relations Law § 77-i). Inasmuch as the mother did not seek immediate return of the child, the court did not err in failing to adhere to that requirement here.
DRL 77-H Domestic Relations Law 77-H
Except as otherwise provided in section seventy-seven-j of this title, the petition and order must be served, by any method authorized by the law of this state, upon respondent and any person who has physical custody of the child. Service may be made outside the state in the manner prescribed by section seventy-five-g of this article.
Service Requirement: The provision mandates that the petition and order in child custody or visitation cases must be served on both the respondent (usually the other parent or party involved) and any person who currently has physical custody of the child. This requirement ensures that all relevant parties are officially notified of the legal proceedings.
Authorized Methods: The law allows for service to be carried out using any method that is authorized by the laws of the state of New York. Typically, this includes methods such as personal service (delivering documents directly to the individual), service by mail, or service through an authorized process server, among others.
Out-of-State Service: The provision also acknowledges that service may need to be made outside the state of New York. In such cases, the method of service should follow the guidelines specified in section seventy-five-g of the same article. This recognizes that parties involved in child custody matters may be located in different states, and there are established procedures for serving legal documents across state lines.
Overall, this provision ensures that all relevant parties are properly notified and served with legal documents in child custody or visitation cases, regardless of their location, while adhering to the applicable laws and procedures of New York State. It emphasizes the importance of due process and transparency in family law proceedings involving children.
DRL 77-I Domestic Relations Law 77-I
Unless the court issues a temporary emergency order pursuant to section seventy-six-c of this article, upon a finding that a petitioner is entitled to immediate physical custody of the child, the court shall order that the petitioner may take immediate physical custody of the child unless the respondent establishes that:
(a) the child custody determination has not been registered and confirmed under section seventy-seven-d of this title and that:
(i) the issuing court did not have jurisdiction under title two of this article;
(ii) the child custody determination for which enforcement is sought has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under title two of this article or enforcement of the determination would violate subdivision one-c of section two hundred forty of this chapter or section one thousand eighty-five of the family court act; or
(iii) the respondent was entitled to notice, but notice was not given in accordance with the standards of section seventy-five-g of this article, in the proceedings before the court that issued the order for which enforcement is sought; or
(b) the child custody determination for which enforcement is sought was registered and confirmed under section seventy-seven-d of this title but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under title two of this article.
The court shall award the fees, costs, and expenses authorized under section seventy-seven-k of this title and may grant additional relief, including a request for the assistance of law enforcement officials, and set a further hearing to determine whether additional relief is appropriate.
If a party called to testify refuses to answer on the ground that the testimony may be self-incriminating, the court may draw an adverse inference from the refusal.
A privilege against disclosure of communications between spouses and a defense of immunity based on the relationship of husband and wife or parent and child may not be invoked in a proceeding under this act.
3 New York Civil Practice: Matrimonial Actions § 41.21
Enforcement Proceeding May Be Stayed for Emergency Protection of Child
The court may stay an enforcement proceeding and enter a temporary emergency order if it finds that it is necessary in an emergency to protect the child, a sibling, or a parent of the child.
Specified Privileges Unavailable
A party to an enforcement proceeding may not invoke a privilege against disclosure of communications between spouses, a defense of immunity based on the relationship between husband and wife, or a defense of immunity based on the relationship between parent and child. In addition, the court may draw an adverse inference from a party’s refusal to testify on the ground that the testimony may be self-incriminating. This provision is derived from the Uniform Interstate Family Support Act (UIFSA), which concerns child support proceedings.
Fees and Costs May Be Awarded
The prevailing party in an enforcement proceeding is ordinarily entitled to an award of necessary and reasonable expenses. These expenses include costs, communication expenses, attorney’s fees, fees for investigation, witness expenses, travel expenses, and child care expenses.
The court will award fees and expenses at the hearing on the enforcement petition, unless the party from whom the fees or expenses are sought establishes that the award would be inappropriate. For example, it may be inappropriate to require a parent to pay fees and expenses if doing so would cause the parent and child to seek public assistance.
The court may not assess fees, costs or expenses against a party who is fleeing an incident of domestic violence or mistreatment or abuse of a child or sibling, unless the court is convinced by a preponderance of the evidence that such an assessment would be clearly appropriate.
A state is entitled to an award of fees, costs and expenses if it is the prevailing party. However, the UCCJEA does not authorize the court to assess fees, costs, or expenses against a state.
Additional Relief May Be Granted
The court may grant additional relief, including a request for the assistance of law enforcement officials. The court may also set a further hearing to determine whether additional relief is appropriate.
DRL 77-J Domestic Relations Law 77-J
Upon the filing of a petition seeking enforcement of a child custody determination, the petitioner may file a verified application for the issuance of a warrant to take physical custody of the child if the child is at imminent risk of suffering serious physical harm or of removal from this state.
If the court, upon the testimony of the petitioner or other witness, finds that the child is likely to suffer imminent serious physical harm or to be removed from this state, it may issue a warrant to take physical custody of the child. Except in extraordinary circumstances, the petition must be heard on the next court day after the warrant is executed. Any adjournment for extraordinary circumstances shall be for not more than three court days. The application for the warrant must include the statements required by subdivision two of section seventy-seven-g of this title.
A warrant to take physical custody of a child must:
(a) recite the facts upon which a conclusion of imminent serious physical harm or removal from the jurisdiction is based;
(b) direct law enforcement officers to take physical custody of the child immediately and deliver the child to the petitioner or, where necessary, to act jointly with the local child protective service to take immediate steps to protect the child; and
(c) provide for the placement of the child pending final relief.
The respondent must be served with the petition, warrant, and order immediately after the child is taken into physical custody.
A warrant to take physical custody of a child is enforceable throughout this state. If the court finds on the basis of the testimony of the petitioner or other witness that a less intrusive remedy is not effective, it may authorize law enforcement officers to enter private property in order to execute the warrant and take physical custody of the child. If required by exigent circumstances of the case and necessary to the protection of the child, the court may authorize law enforcement officers to make a forcible entry at any hour.
The court may impose conditions upon placement of a child to ensure the appearance of the child and the child’s custodian.
N.Y. Dom. Rel. Law § 77-j (Consol., Lexis Advance through 2023 released Chapters 1-358)
1 NY Civil Practice: Family Court Proceedings § 2.03
The enforcement section of the Uniform Child Custody and Jurisdiction Enforcement Act has specific warrant provisions authorizing a petitioner to take physical custody of a child if the child is at imminent risk of suffering serious physical harm or of removal from the State of New York. Domestic Relation Law § 77-j enables the court to permit law enforcement officers to enter private property, including by forcible entry if exigent circumstances exist, in order to execute the warrant and take physical custody of the child.
DRL 77-K Domestic Relations Law 77-K
The court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, 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 or expenses are sought establishes that the award would be inappropriate. No fees, costs or expenses shall be assessed against a party who is fleeing an incident 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 a state unless authorized by law other than this article.
3 New York Civil Practice: Matrimonial Actions § 41.21
The prevailing party in an enforcement proceeding is ordinarily entitled to an award of necessary and reasonable expenses. These expenses include costs, communication expenses, attorney’s fees, fees for investigation, witness expenses, travel expenses, and child care expenses.
The court will award fees and expenses at the hearing on the enforcement petition, unless the party from whom the fees or expenses are sought establishes that the award would be inappropriate. For example, it may be inappropriate to require a parent to pay fees and expenses if doing so would cause the parent and child to seek public assistance.
The court may not assess fees, costs or expenses against a party who is fleeing an incident of domestic violence or mistreatment or abuse of a child or sibling, unless the court is convinced by a preponderance of the evidence that such an assessment would be clearly appropriate.
A state is entitled to an award of fees, costs and expenses if it is the prevailing party. However, the UCCJEA does not authorize the court to assess fees, costs, or expenses against a state.
DRL 77-L Domestic Relations Law 77-L
A court of this state shall accord full faith and credit to an order issued by another state and consistent with this article which enforces a child custody determination by a court of another state unless the order has been vacated, stayed, or modified by a court having jurisdiction to do so under title two of this article, unless recognition and enforcement would violate subdivision one-c of section two hundred forty of this chapter or section one thousand eighty-five of the family court act.
3 New York Civil Practice: Matrimonial Actions § 41.24 Recognition of Other States’ Enforcement Orders Required
A New York court is required to accord full faith and credit to enforcement orders issued by other states, as long as such orders are consistent with the enforcement provisions of the UCCJEA. The New York court must enforce another court’s enforcement order, unless that order has been vacated, stayed, or modified by a court having jurisdiction to do so. The sole exception to this rule is if recognition and enforcement would violate state law limiting the custody and visitation rights of persons convicted of the first or second degree murder of a child’s parent, legal guardian, legal custodian, sibling, half-sibling or step-sibling.
DRL 77-M Domestic Relations Law 77-M
An appeal may be taken from a final order in a proceeding under this title in accordance with article fifty-five of the civil practice law and rules and article eleven of the family court act and may be granted a preference in the discretion of the court to which the appeal is taken. Unless the court enters a temporary emergency order under section seventy-six-c of this article, the enforcing court may not stay an order enforcing a child custody determination pending appeal.
Appeals from Final Orders: The passage begins by stating that an appeal can be made from a final order issued in a proceeding under this title. This suggests that it deals with a legal context or jurisdiction governed by specific laws or regulations, often within family law.
Legal References: It mentions that the appeal process should be conducted in accordance with specific legal articles, namely “article fifty-five of the civil practice law and rules” and “article eleven of the family court act.” These references indicate that the appeal process follows established legal guidelines and procedures set forth in these articles.
Preference in Granting Appeals: The passage goes on to mention that a preference in granting an appeal can be given at the discretion of the court to which the appeal is submitted. This means that, depending on the circumstances and merits of the case, the court may prioritize or expedite certain appeals.
Limitation on Staying Orders: The last part of the passage addresses the issue of staying orders. It specifies that, unless the court enters a temporary emergency order under section seventy-six-c of this article, the enforcing court cannot delay or “stay” the enforcement of a child custody determination while an appeal is pending. In other words, if a court has issued an order regarding child custody, that order typically remains in effect during the appeal process, unless specific emergency circumstances arise.
In summary, this passage outlines the procedures for appealing final orders related to child custody determinations in family law proceedings. It emphasizes that appeals must follow established legal articles and may be granted preference at the court’s discretion. Additionally, it highlights that, in most cases, child custody orders remain in effect during the appeal process unless an emergency order is issued.
DRL 77-N Domestic Relations Law 77-N
In a case arising under this article or involving the Hague Convention on the Civil Aspects of International Child Abduction, the prosecutor or other appropriate public official may take any lawful action, including resort to a proceeding under this title or any other available civil proceeding to locate a child, obtain the return of a child, or enforce a child custody determination if there is:
(a) an existing child custody determination;
(b) a request to do so from a court in a pending child custody proceeding;
(c) a reasonable belief that a criminal statute has been violated; or
(d) a reasonable belief that the child has been wrongfully removed or retained in violation of the Hague Convention on the Civil Aspects of International Child Abduction.
A prosecutor or appropriate public official acting under this section acts on behalf of the state or local government entity and may not represent any private party.
3 New York Civil Practice: Matrimonial Actions § 41.23
In addition to enforcement actions brought by parents, the UCCJEA gives prosecutors and other public officials discretion to bring civil actions to enforce custody determinations. This provision was drafted with the intent of assisting parents who lack the resources to enforce a custody determination in another jurisdiction. The availability of the prosecutor or other government official as an enforcement agency will help ensure that the enforcement provisions of the UCCJEA are available to parents regardless of income level. The provision was modeled on a system that has been effectively used for over 20 years in California.
A prosecutor or appropriate public official who brings a civil enforcement proceeding acts on behalf of the government entity and may not represent any party.
This provision relates only to the civil enforcement of child custody determinations and in no way limits the ability of the prosecutor to use criminal provisions in child abduction cases.
DRL 77-O Domestic Relations Law 77-O
At the request of a prosecutor or other appropriate public official acting under section seventy-seven-n of this title, a law enforcement officer, as defined in subdivision thirty-four of section 1.20 of the criminal procedure law, may take any lawful action reasonably necessary to locate a child or a party and assist a prosecutor or appropriate public official with responsibilities under section seventy-seven-n of this title.
Request by Prosecutor/Public Official: This provision allows for the actions described to be taken only at the request of a prosecutor or another appropriate public official who is acting under section seventy-seven-n of the same title.
Law Enforcement Officer Definition: It specifies that the term “law enforcement officer” is defined in subdivision thirty-four of section 1.20 of the criminal procedure law. This means that the qualifications and responsibilities of a law enforcement officer are defined in another part of the law.
Authorized Actions: The provision grants these law enforcement officers the authority to take any lawful action that is reasonably necessary to locate a child or a party and to assist the prosecutor or public official in fulfilling their responsibilities under section seventy-seven-n.
Reasonable Necessity: The actions taken by the law enforcement officers must be reasonable and necessary for the purpose of locating the child or party and aiding the prosecutor or public official.
Overall, this provision seems to provide a legal framework for law enforcement officers to assist in locating individuals when requested by certain public officials and when it is deemed reasonably necessary to do so. The specific context, such as the purpose and scope of section seventy-seven-n of the title, would be needed to fully understand the implications and significance of this provision. Legal provisions like this are important for ensuring coordination and collaboration between law enforcement and other branches of the justice system in specific situations.
DRL 77-P Domestic Relations Law 77-P
If the respondent is not the prevailing party, the court may assess against the respondent all direct expenses and costs incurred by the prosecutor or other appropriate public official and law enforcement officers under section seventy-seven-n or seventy-seven-o of this title.
Prevailing Party: The provision refers to the “prevailing party,” which typically means the party that wins or succeeds in the case. In this context, if the respondent (the party being accused or facing legal action) does not win the case, this provision comes into play.
Assessment of Expenses and Costs: The court is given the authority to assess and potentially order the respondent to pay for all the direct expenses and costs incurred by the prosecutor, other appropriate public officials, and law enforcement officers. These expenses and costs would likely relate to activities performed under sections seventy-seven-n or seventy-seven-o of the title, suggesting that these sections pertain to specific legal processes or proceedings.
Direct Expenses and Costs: The provision specifies that only direct expenses and costs can be assessed. This means that only expenses and costs directly related to the case or the actions taken under the specified sections can be considered for assessment.
Purpose: The purpose of this provision appears to be twofold. First, it may act as a deterrent against frivolous or baseless legal actions or defenses by the respondent, as they could be held responsible for the costs incurred by the opposing parties. Second, it may help in ensuring that the government and law enforcement agencies are not unduly burdened by the costs associated with carrying out their responsibilities under the specified sections.
Overall, this provision serves as a mechanism to allocate expenses and costs in legal cases involving the government and law enforcement agencies, potentially holding the non-prevailing party accountable for those costs when appropriate. The specifics of how and when such assessments are made would depend on the applicable laws and regulations within the jurisdiction where this provision is in effect.