Published on:

Appellant Contends Court Lacked Jurisdiction

A lawsuit appeal arises out from a family court decision that the court has lacked authority in a custody modification proceeding after a mother fled with her five-year-old son to another country in the middle of the proceeding. A New York Family Lawyer said the court however reversed the said decision.

A complainant father is a United States citizen and his wife as an Italian national who is also a United States citizen and has one child, born in Italy and has dual citizenship.

Apparently, a decision of the divorce was entered in New York. The court finds that it had no authority over custody issues of the child because the boy had lived in New York for only 9 out of his 27 months since birth. As a result, there were no court orders in New York with regard to child custody, visitation or maintenance. Subsequent in filing of the proceedings, the mother filed same proceedings in Rome and the father was permitted to the court in Rome to enter orders for child custody and visitation.

The civil court of Rome granted the divorce and awarded the mother a sole custody of the child. A New York Custody Lawyer said the decision permitted the mother to decide whether she wanted to reside in Italy or in the United States and provided for the father to have visitation under both circumstances. However, the father filed an appeal in the appeal court of Rome requesting joint custody of their child and for a change of visitation.

Before the civil court of Rome decision, the mother with the child and the father were living separately in New York. Subsequent to the court decision, the mother petitioned the family court in New York to modify the Italian court’s order of visitation and to suspend the father’s visitation rights with the child on the grounds that the father had abused their child. The father then filed a cross motion on the said matter seeking to modify the Italian order and to obtain sole custody of their child.

Two days before the court’s decision, the mother’s allegations of abuse were unfounded. The mother fled with the child to Italy and it is a violation in a specific court order. Thereafter, the father filed a violation petition against the mother under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Consequently, the court dismissed the offense filed by the mother. The court also issued three orders which states that New York was the child’s home state and that the father was authorized to accept immediate physical custody of him from law enforcement personnel upon execution of the warrant directing the child’s seizure, that awarding the father temporary legal custody; and that the mother’s removal of their child from the United States going to Italy violated the court’s express order. A Nassau County Family Lawyer said the court also directed the mother to return the child to New York and requesting the state and the federal authorities as well as the Italian authorities to assist in the enforcement of the order. The mother’s attorney appeared in court alone and indicated on the record that the mother had fled to Italy because the mother does not believe that she will get a fair hearing in the court.

Meanwhile, in Italy, the mother appeared in the appeal court of Rome to get a temporary ruling that she still had sole custody and she wish to reopen the investigation into her abuse allegations.

Thereafter, the court decided to reconsider the propriety of the warrants and orders. At that point, the court vacated the order granting temporary custody to the father, as well as the order directing that the child be returned to the United States on the ground that the court did not have the legal authority to issue them since the Italian court had ordered that the mother have sole custody. However, the court did not vacate the order for the arrest of the mother since she had clearly violated the family court’s order by taking the child out of the jurisdiction.
After the oral argument, the court dismissed the mother’s petition for modification of an order of visitation of another court due to her failure to appear in the court and the fact that the allegations about abuse were deemed to be false. The court also finds that the court’s prior orders would be vacated to delete any direction that the child be returned to New York and/or placed in the father’s custody.

The father then moved for an order directing that his petition for sole custody of their child be scheduled for an investigation and a final disposition consistent with the child’s best interests. In an oral decision, the family court denied the motion for investigation, vacated all outstanding arrest warrants and dismissed the proceeding.

On appeal, the father asserts that the court did and does have authority and his cross petition in the court improperly denied the investigation on child custody.

Based on records, the court had authority to modify the child custody order of the Italian court because New York was the child’s home state at the time both the petition and the cross petition were filed. A Queens Family Lawyer said the home state as defined by the law is the state in which a child has lived with a parent for at least six consecutive months immediately before the beginning of the child’s custody proceeding.

On appeal, however, the mother argues that home state matter and further argue that the New York court do not have authority because the father’s appeal of the Italian court’s sole custody order is pending in Rome. The mother relies on domestic relations law.

Based on the record, the court also erred in the decision that New York to be an inconvenient forum pursuant to domestic relations law. The court failed to consider the relevant legal factors and by commencing the instant action in New York, the mother purposely availed herself of that state’s authority. Further, the Italian court was the proper authority for the initial child custody proceeding because the child had lived in New York for only 9 out of his 27 months since birth, and those nine months were apparently not immediately preceding the commencement of the action. By the time the mother filed to modify the Italian custody order in family court, Italy no longer had exclusive, continuing authority because New York had become the child’s home state and both parents were living in New York by that time.

To affirm the order of the court would basically give the mother a choice of authority and thus the associated right to disregard any orders of the court of which she availed herself when she failed to obtain the desired outcome.

Contrary to the mother’s assertion, previous decision and a convention doesn’t apply to the case because the present proceeding was expressly brought in state court under the UCCJEA and was not an action brought under the convention. In any event, previous decision and that convention apply to situations where a child is wrongfully removed from a foreign country, brought to and then retained in the United States. The court decision to dismiss the cross petition for modification of the child’s custody order issued by a foreign court is reverse.
Not all couple’s story end like a fairy tale ending. Misunderstandings could bring deeper problems which sometimes lead to divorce. If you want an advice from the NY Divorce Lawyers, you can visit or call the office of Stephen Bilkis and Associates. A NY Child Custody Lawyer and NY Child Support Lawyer can also provide helpful assessment and legal guidance on your legal problems relating to your children.

Contact Information