A New York Family Lawyer said this is a related child custody and visitation proceedings pursuant to Family Court Act article 6 wherein the mother, A, appeals, as limited by her brief, from an order of the Family Court Nassau County dated 10 March 2010, declining jurisdiction over the matter pursuant to Domestic Relations Law § 76-g, dismissing the petitions, and directing the parties to file any further requests for relief in the State of Florida.
The court reverses the judgment insofar as appealed from, on the law, with costs. The court reinstates the petitions pertaining to the subject child and the remits the matter to the Family Court, Nassau County for further proceedings.
A and B were never married but had a child together born in New York on 16 August 2004. Two months after the child's birth, A and the child resided in New York and B resided in Florida. A filed petitions in New York seeking an order of filiation and an order of support, which relief was granted.
A New York Divorce Lawyer said that according to B, A moved to Florida in May 2005, and resided there continuously through December 2005, at which time the B filed a petition in Florida seeking visitation. However, the Florida proceeding was dismissed based upon the Florida court's erroneous conclusion that the prior New York filiation proceeding deprived the Florida court of subject-matter jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act.
B and A thereafter filed petitions in New York, where A and child were then residing, seeking, respectively, visitation and custody, but neither party informed the New York court, as required, of the proceedings held in Florida in accordance with Domestic Relations Law § 76-h[a].
A final order granting custody to the A and visitation to B was entered upon the consent of the parties. A and B subsequently filed several petitions in New York, inter alia, to modify the final order of custody and visitation. B also sought an order transferring jurisdiction of the matter to Florida. Upon learning, for the first time, of the Florida proceedings, the New York court held a telephone conference with the Circuit Court of the Fifteenth Judicial Circuit, Palm Beach County, Florida, during which it was determined that Florida had been the "home state" of the child at the time Br's original visitation proceeding was filed in that state and, thus, that Florida had jurisdiction to make the initial child custody determination in accordance with Domestic Relations Law § 76; Fla. Stat Ann § 61.514[a].
A Westchester County Family Lawyer said that nonetheless, the Florida court determined that, under the circumstances, including the fact that the New York court had already entered a final order of custody and visitation, Florida was an inconvenient forum and New York was the more appropriate forum in accordance with Fla. Stat Ann § 61.520 and Domestic Relations Law §§ 76-f, 76[b].
A Suffolk County Family Lawyer said that following the Florida court's determination to decline jurisdiction, B argued before the Family Court that New York had originally entertained A only because of misconduct on the part of A, and he contended that A should not be rewarded for such misconduct. The Family Court then held a hearing to determine whether it should decline to exercise jurisdiction pursuant to Domestic Relations Law § 76-g, by reason of unjustifiable conduct on the part of A. After the hearing, the Family Court declined jurisdiction over the matter, and, thus, dismissed the pending petitions and directed the parties to seek any further relief in Florida.
Domestic Relations Law § 76-g mandates, with certain exceptions, that if a court of this state has jurisdiction under Domestic Relations Law article 5-A because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction as per Domestic Relations Law § 76-g.
Contrary to B's contentions, the Family Court's jurisdiction over this matter was not gained by virtue of any "unjustifiable conduct" on the part of A. B's and the A's visitation and custody petitions were filed in New York after the Florida court had dismissed B’s initial visitation proceeding for lack of jurisdiction. While the decision of the Florida court dismissing the visitation proceeding was later determined to be incorrect based on Fla. Stat Ann 61.514[a], the record demonstrates that, as determined by a Florida court, any error in that regard was not caused by any fraudulent misrepresentations made by A, but rather by a misinterpretation of the relevant law.
Accordingly, contrary to B’s assertion, to the extent that such conduct could constitute "unjustifiable conduct" pursuant to Domestic Relations Law § 76-g, B failed to establish that the New York court obtained jurisdiction over this matter by virtue of any fraud committed by A on the Florida court.
Further, B has failed to demonstrate any misconduct on the part of A in returning with the child to New York, which was her state of residence prior to the child's birth, and where she had been residing with the child since his birth, before relocating to Florida. There was no custody order issued, or any other order of any court, that would have prevented A, in whose continuous custody the child had remained since his birth, from returning to New York, and there is no allegation that B was ever unaware of the child's whereabouts.
Under the circumstances presented, A's conduct in returning to New York was not unjustifiable based on Domestic Relations Law § 76-g[b], Sanjuan v Sanjuan and the Uniform Child Custody Jurisdiction and Enforcement Act  § 208. Moreover, "unjustifiable conduct" for purposes of declining jurisdiction is limited to conduct that actually creates the court's jurisdiction.
In the case at bar, the determination to decline jurisdiction was improperly based, in part, on A's conduct during proceedings held in New York after jurisdiction was placed here in accordance with the Domestic Relations Law § 76-g and the Uniform Child Custody Jurisdiction and Enforcement Act  § 208.
In any event, even if A's conduct had been "unjustifiable," the statute directs that jurisdiction should not be declined, despite unjustifiable conduct, where a court of the state otherwise having jurisdiction determines that this state is a more appropriate forum.
Thus, the Family Court improperly declined to exercise its jurisdiction because the Florida court, the court otherwise having jurisdiction, had already determined that Florida was an inconvenient forum, and that New York was a more appropriate forum under the circumstances.
In light of the foregoing, we need not reach A's remaining contentions.
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