New York Family Law Blog
In this Family case, the subject children are the parties’ twin sons, born in the Dominican Republic. The father obtained a default order of custody there in 2002, an order appealed by the mother and affirmed by the Dominican court, a month after she had brought the boys to the United States. In quick succession, the Integrated Domestic Violence Court—which has jurisdiction over both criminal and Family law matters—received a criminal prosecution against the father based on his alleged threats to kill the mother; a writ of habeas corpus filed by the father under article 6 of the Family Court Act seeking enforcement of the Dominican custody order; a petition for custody of the two boys filed by the mother under article 6 of the Family Court Act; and a Family offense petition filed the same day by the mother under article 8 of the Family Court Act, alleging additional acts of domestic violence.
A Bronx County Family Attorney said that a law guardian assigned to represent the children reported an extensive history of domestic violence. Based upon this information, the court assumed temporary emergency jurisdiction under Domestic Relations Law § 76-c, and directed the Administration for Children’s Services to interview both parents and the children.
A New York Family Lawyer said the review of the documents of the Dominican proceedings confirms that the mother and father separated in 1998. At that time, pursuant to an agreement signed before assistant to the prosecutor, the father consented to the terms of an order of protection, agreeing to refrain from assaulting the mother verbally or physically, and to vacate the Family home until the mother was able to find other housing. He agreed to pay child support, and was given regular visitations as long as he behaves appropriately. The mother left the Dominican Republic in 1999, leaving the children with her mother, remarrying in 2000. Five weeks later, while the mother was still in the United States, the father filed a claim for custody of the two children in the Court of the First Instance for Children and Adolescents of the Distrito Nacional. The maternal grandmother, who had physical custody of the children at the time, was named as defendant in the matter.
A New York Custody Lawyer said in a forensic report submitted to the Dominican District Court, the evaluator—who had interviewed only the father, as the mother was not in the country—concluded that he should have custody as the mother is both physically and emotionally absent, and that the other Family ties, according to the father, are not the most adequate for the children’s emotional or intellectual development. In this case, the father figure would be of vital importance, as such, we suggest beginning individual and Family therapy to address some of the previously reported issues.
Later, in the midst of the Dominican judicial proceeding, the mother temporarily ceded custody of their sons to the father, in a document known as a “friendly agreement,” signed before the law guardian. The custody dispute thus came to a halt. It is not known why, or under what circumstances, the mother did this.
In 2002, the father reactivated the Dominican custody proceeding. In his request for a hearing he alleged that the amicable agreement between the parties is not being adhered to. A Bronx Family Lawyer said the nature of the violation that prompted the father’s action was not specified. By that time, however, the mother apparently lived in the United States and had regular, though intermittent, contact with the boys.
Proof of service by mail to an address not specified in the part of the Dominican court record before this court was submitted to the Dominican court. A Bronx Custody Lawyer said the mother did not appear for the custody proceeding. In a decision, the District Court found respondent in default for nonappearance and awarded full custody to the petitioner. Noting that the children had now been with their father for over a year, the court declined to move them again, citing the need for “stability and security in the future.” The law guardian in the proceeding took the position that custody should be awarded to the father, noting that the mother “ceded custody of said children by means of an amicable agreement signed on the 1st of December of 2000,” and urged adherence to that agreement.
The mother, who asserts that she learned of the renewed custody proceeding only when she appeared in the Dominican Republic for a visit with the children in 2002, filed an appeal and inquiry was held in that court. In a decision, the Appellate Court affirmed the grant of custody to the father.
Two weeks after the Dominican appellate decision, the father was arrested in Bronx County for threatening to kill the mother. He was charged with two counts of aggravated harassment in the second degree and related lesser offenses. He asserted to the Criminal Justice Agency (CJA), which interviews criminal defendants prior to arraignment for the purpose of advising the court on bail, that he had been “self-employed” full time as an “entrepreneur” in the Bronx for the past two years. He represented that he had lived alone at that address during the prior year. He gave a different New York address to the arresting officer. At arraignment, a full order of protection was issued in favor of the mother. Based in part on the father’s representations of community ties, he was released on his own recognizance and remains at liberty.
Almost immediately upon release, the father brought a petition for writ of habeas corpus in Bronx County Family Court, alleging that the mother removed the children from the Dominican Republic in contravention of the final order of custody issued by the Family Court in Santo Domingo and affirmed on appeal. A law guardian was assigned to represent the children, and the matter was made returnable for the following day, in the Integrated Domestic Violence (IDV) Court, where the criminal matter was also now pending.
In response to the writ of habeas corpus, the mother appeared in the IDV Court with the children. Given the allegations of domestic violence and the lack of official, translated court documents from the Dominican proceeding, the children were allowed to remain with their mother pending further inquiry. The Dominican court documents were then sent for official translation.
Thereafter, the mother filed a petition for custody with Bronx County Family Court. In that petition she alleged that, after she fled without the children to the United States in 1999 to escape domestic violence, the petitioner took their children from her mother’s home without her permission and obtained a default order of custody from a court in the Dominican Republic. She also filed a Family offense petition, alleging again that the father had threatened her life and that he had displayed a gun, threatening to shoot her and the children.
The issues to be resolved in this case are as follows: (1) whether the law requires this court to enforce a custody order issued by a court in the Dominican Republic, or (2) whether the court may assume jurisdiction of the parents’ custody dispute and modify or replace the Dominican court’s order.
Determination whether this controversy should remain with this court or be returned to the originating court in the Dominican Republic is governed by the recently enacted Uniform Child Custody and Jurisdiction Enforcement Act, effective April 28, 2002 and replacing the former “Uniform Child Custody and Jurisdiction Act” (UCCJA). Set forth at article 5-A of the Domestic Relations Law, this statutory scheme is designed to eliminate jurisdictional competition between courts in matters of child custody. Jurisdictional priority, under the UCCJEA, is always conferred to a child’s “home state.”
New York State, in particular, went beyond the language proposed by the NCCUSL drafters of the UCCJEA, enacting additional provisions that confer special protection for victims of domestic violence. In a statement of legislative intent that introduces the UCCJEA, the Legislature mandated that issuance and enforcement of child custody and visitation should be accomplished “in a manner that ensures that the safety of the children is paramount and that victims of domestic violence and child abuse are protected.” New York’s statutory scheme requires a moving party to indicate, for example, whether “any proceeding has been commenced that could affect the current proceeding, including proceedings relating to domestic violence and, if so, identify the court, the case number, and the nature of the proceeding.” By implication, therefore, enforcement of a valid out-of-state decree may be affected by a new domestic violence proceeding.
Under title II of the UCCJEA, pursuant to a provision denying UCCJEA protection to a wrongdoer, a court cannot consider as a factor weighing against a party “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 [party] from domestic violence or the child or sibling from mistreatment or abuse.” Unlike its predecessor statute, the UCCJEA was made applicable not only to other states but also to all foreign countries, even if the other jurisdictions have not themselves adopted it. Foreign child custody determinations must be “recognized and enforced” so long as the determination was made “in substantial conformity with the jurisdictional standards of this article.” The sole exception occurs only when the custody law of the foreign country, as written or as applied, violates fundamental principles of human rights. Notably, the mother does not attempt to raise any barriers pursuant to Domestic Relations Law § 75-d to recognition of the Dominican decree. We must assume, therefore, for purposes of this jurisdictional analysis, that there is a valid order of custody from the Dominican court.
The court assumed temporary emergency jurisdiction in order to investigate further the domestic violence allegations. Based on the presence of a criminal proceeding against the father, the filing of a new Family offense petition, and the report of the law guardian that there was an extensive history of domestic violence in the Family, this court stayed any enforcement proceedings until the underlying issues of domestic violence and the safety of the children could be resolved or a determination could be made that it was appropriate for this court to assume full jurisdiction of the matter.
Where, as here, there exists a custody order from another jurisdiction, it is incumbent that the temporary court contact the original court to “resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.” If the issuing court declines to retain jurisdiction because of significant connections between the child and the new state, the temporary court may assume permanent jurisdiction. That decision, however, is up to the original court, not the new.
The result of the communication with the home state court was that the Dominican court declined to exercise jurisdiction. In her letter, the Dominican judge stated, in essence, that she viewed New York as an appropriate forum for resolution of this custody matter. In particular, she stated that prior to her issuance of her order the parties signed an agreement leaving the kids in their father’s custody until the mother was settled in the United States. She concluded that there was no conflict between her ruling and the New York State proceeding. She further concluded that if the parents are living now in the U.S.A. Bronx the court should proceed in both matters: The custody and the criminal prosecution for acts of domestic violence.
Having found a basis for temporary emergency jurisdiction, it is now appropriate for this court to consider whether it should assume jurisdiction of this matter for consideration of the mother’s application for a change in custody. This inquiry is wholly separate from that for temporary emergency jurisdiction, and is governed by Domestic Relations Law § 76-b, Jurisdiction to modify determination: 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
Accordingly, the court assumes jurisdiction to modify the Dominican Republic custody order. As noted previously, under Domestic Relations Law § 75-a (11), “modification” does not necessarily mean a change in custody, only that this court’s order, whatever it may be, will replace that of the Dominican court. Any measures requested by the parties, pursuant to Domestic Relations Law §§ 75-i, 75-j, and 75-k, to ease the difficulties of litigating a matter with history in two far-flung jurisdictions, will be readily entertained by the court and, where appropriate, granted, with court staff assisting in any way possible to implement these procedures.
Disputes between parents can affect the upbringing of their children, in every separation, the children suffers. Here in Stephen Bilkis and Associates, we have our Bronx County Family Lawyers to ensure that the rights of the children of separating parents were protected. Contact us now and we are ready to help.