Court Rules of Visitation Issue
A man and his wife were residents of California and were married in California in October 1975. Their daughter was born also in California on January 29, 1977. Two years after their marriage and not soon after their daughter was born, their marital problems drove them to a trial separation.
A New York Family Lawyer said the mother and the daughter came to New York. The father joined them in New York and stayed with them for six weeks but he returned to California. A year after that, in 1978, the mother and her daughter returned to California. They stayed there until 1979. After this, the mother and her daughter returned to New York and continued to live there.
The husband who stayed in California filed a divorce proceeding in the Superior Court of California. A New York Custody Lawyer said the judge there ordered their divorce and awarded sole child custody of their daughter to the mother and gave the father reasonable visitation rights.
A year later, in 1981, a dispute arose between the father and the mother regarding the enforcement of the father’s visitation rights. The father brought a suit in California asking an enforcement of his visitation rights or, if that is not possible, to award him sole child custody.
The wife went to California and appeared before the Court. She challenged the jurisdiction of the court over her daughter who was a resident of New York. She also raised the issue of their daughter’s severe emotional reaction to being turned over to the custody of her father. The father withdrew his application for sole child custody and the mother and the father tried to reach an agreement as to his visitation rights. The mother then flew back to New York.
A year later, the wife was unable to return to California to appear before the Court there and was declared in default. A Nassau County Family Lawyer said the wife had a pelvic inflammatory disease and had chicken pox. In her absence the California Court changed the custody over their daughter from the mother to the father.
The mother filed an action before the Family Court of New York. The only question is whether or not the New York Family Court has jurisdiction to hear and decide this case when a court in California had already exercised jurisdiction over the issue of child custody.
The Court held that the California Court had no jurisdiction to modify custody arrangements. It is New York and the courts of New York which has jurisdiction over the issue of child custody because the child is a resident of New York and her home state is New York.
The Court resolved to recognize the divorce decree issued by the California Court as valid. A Queens Family Lawyer said the original award of custody to the mother made in the original divorce proceedings in California is also recognized as valid. But the subsequent order of the California Court revoking the award of child custody to the mother and granting child custody to the father cannot be recognized as valid. For this reason, the New York Family Court takes jurisdiction over the case filed by the mother in New York. The Court will treat the mother’s petition in New York as an “emergency” action to protect the child. The Family Court granted a temporary restraining order to stop the father from taking custody over their daughter. He is ordered to refrain from interfering with the mother’s custody of their daughter. His visitation rights are suspended pending a full hearing on the merits of the case.
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