This case arose from a divorce proceeding which was commenced in Massachusetts. Respondent’s physical custody of the two minor children was initially pursuant to the parties’ May 21, 1993 separation agreement. A New York Family Lawyer said that agreement provided for joint custody, with primary physical residence with respondent and liberal visitation with petitioner. It further provided that petitioner would pay child support to respondent in accordance with the Massachusetts Child Support Guidelines, and that “[t]his Agreement shall be construed and governed according to the laws of the Commonwealth of Massachusetts.”
A judgment of divorce incorporating the separation agreement was entered in Massachusetts on April 13, 1994.
In 1995, Respondent relocated to Buffalo, New York with the parties’ two children in accordance with an agreement entered in by the parties in a Massachusetts Proceeding which sought the court’s authorization to relocate the children to Buffalo, New York. The said agreement further provided that “Massachusetts will retain jurisdiction over the children and the parties to the extent otherwise consistent with law and for so long as petitioner remains a resident in the Commonwealth.”
On March 17, 1998, petitioner commenced an action in Massachusetts seeking a temporary restraining order and a permanent injunction prohibiting respondent from relocating the children to Portland, Oregon. A Nassau County Family Lawyer said the petitioner also sought an order requiring respondent to relocate the children back to Massachusetts. On March 26, 1998, petitioner commenced this proceeding in Supreme Court, Erie County, requesting that New York assume jurisdiction and seeking an order restraining respondent from relocating the parties’ children to Oregon and awarding him primary physical custody.
On April 14, 1998, respondent moved to dismiss this proceeding based on lack of subject matter jurisdiction pursuant to CPLR 3211 (a) (2) and 28 USC § 1738A (d). In support thereof, respondent asserted that, pursuant to Domestic Relations Law § 75-g (1), the New York court was precluded by the pending Massachusetts action from exercising jurisdiction. Respondent relied on the Parental Kidnapping Prevention Act (PKPA) (28 USC § 1738A) and the Uniform Child Custody Jurisdiction Act (UCCJA) (codified in New York in Domestic Relations Law §§ 75-a – 75-z) to support dismissal on the ground that Massachusetts had not declined jurisdiction. Additionally, she asserted that the parties’ judgment of divorce reserves jurisdiction to Massachusetts.
On June 23, 1998, respondent answered and counterclaimed for “modification” of the present custody arrangement to permit her relocation of the children to Oregon. A Nassau County Child Support Lawyer said she reiterated the fact that she has been the primary custodial parent since the parties’ separation and offered to revise the visitation schedule to give petitioner “block” time during school vacations and to pay the incremental costs for the children to visit and stay in communication with petitioner. In reply, petitioner denied that moving the children to Oregon would be in their best interests.
The court denied petitioner’s request for custody of the children and granted respondent’s counterclaim to relocate the children to Portland, Oregon. The court concluded that it was in the best interests of the children to remain with respondent. Additionally, the court ordered that petitioner have visitation with the children for all but the first and last weeks of their summer vacation, all Christmas and spring breaks, Thanksgiving break from Wednesday morning to Sunday evening, three other three- or four-day weekends upon 30 days’ written notice, as well as any other reasonable time upon two weeks’ written notice. Finally, the court directed petitioner to deposit his child support payments into an account to be used by him to pay for his and/or the children’s transportation costs, a 1-800 toll-free telephone number for the children to reach petitioner and/or their grandparents, and any other “reasonable expense related to enhancing or facilitating the relationship between petitioner and the children”. In its order, the court specified that it was not modifying the Massachusetts child support order.
At issue here is whether the New York court has jurisdiction to modify petitioner’s child support obligation as set forth in the Massachusetts order, and whether it had subject matter jurisdiction over the custody determination.
The court ruled that, petitioner’s existing child support obligations were indeed modified under the liberal definition of modification set forth in the Uniform Interstate Family Support Act (UIFSA) (Family Ct Act art 5-B) and the Full Faith and Credit for Child Support Orders Act (FFCCSOA) (28 USC § 1738B). Consistent also with those provisions, once Massachusetts entered the original support order, no other court could modify that order for as long as the obligee, obligor or child for whose benefit the order was entered continued to reside within the jurisdiction of that court, unless each party consented in writing to another jurisdiction.
It further held that, New York does not have subject matter jurisdiction to render a “custody determination. Under the PKPA, in relation to UCCJA, New York could not concurrently exercise jurisdiction while Massachusetts had jurisdiction to make a “custody determination” as defined by 28 USC § 1738A (b) (3) (see, Matter of Matter of Michael M. v Tanya E., supra). Additionally, when respondent moved to Buffalo, the parties entered into an agreement that Massachusetts would continue to have jurisdiction over custody issues, “a clause that was accepted by [respondent] with full knowledge that she would be residing with the child[ren] in another state” (Vernon v Vernon, 210 AD2d 170, 171).
Accordingly, the order should be reversed and the petition and counterclaim dismissed.
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