The parties were married in 1966 and lived together with the children in Schenectady until they physically separated in 1973. Sometime in January 1974, they entered into a formal separation agreement and the mother was given custody. A New York Family Lawyer said sometime in March of 1974, the agreement was incorporated but not merged in the divorce decree dissolving the marriage granted in the Supreme Court, Schenectady County. The separation agreement contained a provision under which the mother agreed not to remove the children from Schenectady without the consent of the father. The mother soon remarried a man who was then in the military service. Sometime in August of 1974, she sought and received permission to leave Schenectady with the children to accompany her husband to Texas where he was stationed. That marriage was dissolved in 1975 or 1976 and she then moved to the State of Florida. While there, she met and married again. Sometime in January of 1977, she, her new husband and the children moved to Mississippi, where he was attending college. The father resumed contact with the children in Florida in January of 1976 and had them for mutually agreed upon periods of visitation in Schenectady during the summers of 1976 and 1977.
Sometime in the spring of 1978, serious marital difficulties arose between the mother and her husband, leading to the initiation of a divorce action by her in May of 1978. Apparently in an effort to avoid exposure of the children to the domestic turmoil and particularly to alleged harassing conduct of the new husband toward the mother, the parties agreed that the children would start their visitation earlier than usual, after the school year ended in Oxford in May. Thereafter, a New York Criminal Lawyer said the father retained the children and then commenced the instant proceeding to change legal custody.
On 25 August 1978, by petition and order to show cause, the father seeks custody of his two daughters, aged nine and seven. The mother was personally served with the pleadings in Oxford, Mississippi. Thereafter, she appeared in the proceeding and a counsel was assigned. A Nassau County Family Lawyer said she now moved to dismiss the petition on the grounds that under the Uniform Child Custody Jurisdiction Act (UCCJA), Domestic Relations Law, the Family Court either lacks jurisdiction or should decline to exercise jurisdiction to determine the custody of the children.
On the issue of Jurisdiction:
Under the law, courts of the herein state are permitted to exercise jurisdiction over a custody dispute, even when another state’s forum may also satisfy the requirements to determine custody, if there are sufficient legal and factual contacts with the child and his family to justify a legitimate state interest in the outcome of the dispute, and if sufficient evidence is available upon which a court could make a fair and well-founded determination of custody based upon the best interests of the child.
Thus, the court finds that the facts support the jurisdictional prerequisites. A Queens Family Lawyer said the significant connection of the state to the dispute consists of: the fact that the original decree dissolving the marriage of the parties and awarding custody was made in New York; the residence of one of the parents in New York; and the presence of the children in New York. The substantial evidence requirement is also met in that evidence is available here concerning the suitability of one of the contestants, i. e., the father, and concerning the children’s condition and preferences. The most decisive factor is that New York rendered the original custodial decree. The courts of other states where the Act has been in effect for some time construe it to retain the principle of continuing jurisdiction unless contact with the child has virtually ceased, and even when another state has become the home state.
On the issue of Forum Non Conveniens:
The law provides that a court which has jurisdiction to determine custody under the act may nevertheless decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
Here, the court should decline to exercise jurisdiction over the proceeding on the ground that it is an inconvenient forum and should stay further proceedings on various conditions. As repeatedly held, courts have declined to exercise their continuing jurisdiction over their own prior custody decrees when the custodial parent has moved to another state with the children and the children are present in the original state for visitation only.
On the issue of Retroactivity:
The general rule is that a new procedural statute will be applied in already pending actions to any procedural steps taking place subsequent to the act’s effective date, in the absence of clear contrary legislative intent. Even in instances of substantive statutory changes in child welfare-related matters, the law as it exists today has been applied to cases pending before the new enactment. Moreover, well before the effective date of the U.C.C.J.A., it has been repeatedly held that the policies of the act reflect the recent common law of New York. And, as previously discussed, forum non conveniens has been a part of New York procedural law long before the enactment of the U.C.C.J.A., and its principles have been applied by New York courts to decline jurisdiction in interstate custody matters either expressly or under the doctrine of comity. In short, no impermissible retroactive effect is being given to the U.C.C.J.A. by dismissal here on the basis of inconvenient forum, either because such dismissal merely involves the application of a procedural statute to an already pending case, or because the U.C.C.J.A. substantially reflects the law existing before its effective date.
In sum, the instant proceeding is stayed with conditions, viz: that the mother stipulate her consent and submission to the jurisdiction of the Chancery Court of Lafayette County, Mississippi in any proceeding brought by the father for the same or similar relief; that the mother further stipulate that in any such proceeding, the report of caseworker of the Child Welfare Division of the Schenectady County Department of Social Services and the reports of the doctor, previously submitted to the court, may be admitted into evidence, subject to the right of either party to take the testimony of the authors of the reports in Schenectady by oral depositions, which depositions shall also be admissible in evidence. The court will retain jurisdiction to direct and supervise the return of the children to the custody of their mother not later than the approximate date of the end of the school year and may take place earlier upon application of either party or at the request of the Chancery Court of Lafayette County, Mississippi, if their presence is deemed necessary in connection with any pending custody proceeding in that court. Depending upon the satisfactory showing of compliance with the conditions, and the return of the children to their mother, the proceeding is dismissed.
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