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Court Decides Subject Matter Jurisdiction Issue in Custody Hearing

There are two cases before the court for determination.

A New York Family Lawyer said that on or about 30 November 2009, the Family Court of New York County, upon a denial of the respondent mother’s application to dismiss the neglect petition pursuant to Family Court Act § 1051(c) and a fact-finding determination that the respondent mother neglected the subject child, ordered the release of the said subject child, among other things, to the custody of the non-respondent father. On or about 9 November 2009, the same Family Court of New York County, to the extent appealed from as limited by the briefs, awarded custody of the of the subject child to the non-respondent father. The Appellate Court unanimously affirmed the said orders, without costs.

A New York Custody Lawyer said that on or about 2 February 2010, the same Family Court of New York County, to the extent appealed from as limited by the briefs, set forth a visitation schedule for the mother. The Appellate Court unanimously dismissed the said order, without costs, as taken from a non-appealable order.

On or about 16 February 2010, the same Family Court of New York County, to the extend appealed from as limited by the briefs, modified the 2 February 2010 order and set forth certain travel and relocation conditions for the petitioner father. The Appellate Court unanimously affirmed the said order, without costs.

On or about 8 April 2010, the same Family Court of New York County granted the respondent father’s motion to dismiss the mother’s petition to modify the visitation orders. The Appellate Court unanimously affirmed the said order, without costs.

First, a Nassau County Family Lawyer said the preponderance of the evidence indeed supports the Family Court’s finding that the subject child’s physical, mental or emotional condition was in imminent danger of becoming impaired as a result of the mother’s long-standing history of mental illness and resistance to treatment. This is pursuant to Family Ct Act §§ 1046[b][i], 1012[f][i][B] and the landmark case entitled Matter of Madeline R. (1995). In fact, the mother stated in her own testimony before the court her multiple extended hospitalizations for mental illness, and the record showed her lack of insight into her illness and her repeated relapses due to noncompliance with treatment and medication.

Second, the Family Court properly denied the mother’s motion to dismiss the neglect petition pursuant to Family Ct Act § 1051(c) since the dangers the mother posed to the subject child had not passed. Thus, the court’s continued aid was required under the circumstances. This was the same ruling the court made in Matter of Eustace B. [Shondella M.] (2010) and Matter of Christopher R. [Lecrieg B.B.] (2010).

Third, a Nassau County Child Custody Lawyer said that based upon the totality of the circumstances, and in consonance with the court’s ruling in Eschbach v Eschbach (1982), the award of custody to the father herein would certainly serve the best interests of the subject child. It is clear upon the evidence presented at the consolidated hearing on the disposition of the neglect petition and the father’s custody petition that the mother was incapable of caring for the child and continued to have a lack of insight about her illness, and that the subject child is doing well while living with her father.

Fourth, since the 2 February 2010 visitation order was entered on consent, it is not appealable; as held in Matter of Reilly v Reilly (2008).

Fifth, the Family Court did not abuse its discretion when it entered the 16 February 2010 visitation order modifying the 2 February 2010 order which set forth travel and relocation conditions for petitioner father.

Sixth, the mother failed to make an evidentiary showing of changed circumstances sufficient to warrant a hearing. Thus, the Family Court properly dismissed, without a hearing, the mother’s petition to modify the visitation orders; as held in Matter of Rodriguez v Hangartner (2009).

The court considered the mother’s remaining arguments and found them bereft of merit.

Accordingly, the Decision and Order of the Court entered on 19 May 2011 is recalled and vacated.

On 11 June 2004, in a similar case, petitioner mother filed an order to show cause seeking an order of the court declining jurisdiction over issues of custody and visitation concerning her two children with the respondent father, A and B. On 30 July 2004, the matter was heard. The petitioner mother appeared, with counsel, and respondent father, who was not present due to his being incarcerated, was represented by counsel. The children’s law guardian also appeared. The parties were given the opportunity to submit memoranda of law on the jurisdictional issue. The petitioner and respondent each filed papers on said issue, and the law guardian submitted a letter in support of the petitioner’s application.

The long history of litigation between the parties can be summed up as follows:

When the parties were still together, they resided with their children in New York. Sometime in November of 1999, when A was two years old and B was just two months old, the parties separated. The mother and the children relocated to New Jersey. The father then petitioned for custody. That petition resulted in an order of joint legal custody with physical custody to the mother and visitation to the father. The entry of the said order there has been numerous violation and modification petitions which have been filed and heard before the court. Most recently, the father filed a petition for modification of the visitation portion of the order and the mother petitioned for sole custody, both based upon the father’s current incarceration. The court ordered that the father have visitation once per month, with the mother transporting the children. Thereafter, the mother again filed a petition for sole custody but which she later withdrew. Subsequently, the mother filed the application at bar.

The issue here is whether or not, as a result of the father’s incarceration within a federal penitentiary in the Commonwealth of Pennsylvania, the court is devoid of jurisdiction or should decline jurisdiction over future petitions to modify the existing order of custody and visitation pertaining to the parties and their children.

Under the Domestic Relations Law § 76-a (1), “New York has exclusive, continuing jurisdiction over a child custody determination until a court of this state determines that: neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or, that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.”

First, the question of whether or not New York or Pennsylvania is the father’s state of residence must be determined.

In November of 1999, the mother and the subject children relocated to the State of New Jersey. It is uncontested that until the father’s incarceration, he remained a resident of the State of New York. It is also uncontested that the father is currently incarcerated within the State of Pennsylvania and that his wife continues to reside in the marital residence which is located in the State of New York.

As provided for under Article II, § 4 of the New York Constitution, for voting purposes, a person shall neither gain nor lose residence based upon his place of incarceration. While there appears to be neither statutory nor case law directly on point as to whether a person’s residence is determined by his or her place of incarceration for the specific purpose of determining jurisdiction for child custody purposes, there exists case law for determining other purposes, such as voting and school district residency. As held in the cases of People v. Cady (1894), Westbury Union Free School Dist. v. Amityville Union Free School Dist. (1980), and Chris-Mac Co. v. Johnpoll (1985), it is a person’s domicile rather than his or her place of incarceration that is determinative. “Residence,” as that term is used in the Domestic Relations Law relating to residency requirements for divorce actions, is synonymous with “domicile.” Thus, the requirement of residence is not satisfied by the mere bodily presence of a party within a state, no matter for how long a period. This is clearly provided for in Domestic Relations Law § 230 [4]. As ruled in McCarthy v. McCarthy (1943), a domicile implies an actual bona fide residence of one who is in a state with the intention of remaining there permanently even though such person may, at some future time, seek a home elsewhere.

In the case at bar, it can be clearly inferred that the father does not intend to remain within the federal penitentiary permanently and it is not his intention to make it his home. Moreover, noteworthy is the fact that the court was not provided with, nor did it find, any case law supporting the mother’s argument that a person’s residence, for any legal purpose, is determined by the place of his or her incarceration.

Accordingly, New York remains the father’s state of residence for the purposes of determining jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, and that, contrary to the mother’s assertions that it is devoid of subject matter jurisdiction, New York State maintains continuing, exclusive jurisdiction to modify the parties’ order of custody and visitation.

Second, the issue that the court must decide is whether or not, pursuant to Domestic Relations Law § 76-f, the court should decline jurisdiction on the basis that it is an inconvenient forum and that a sister state is, under the circumstances, a more appropriate jurisdiction. As noted, the court at bar has an extensive history with the parties and is well versed in the dynamics of the parties’ family relationship. However, the subject children have resided within the State of New Jersey for almost five years, have attended school in New Jersey and one of the children undergoes therapy in that state. What’s more, due to the provisions of the custody and visitation order, the children have spent a majority of their time in New Jersey and, as a result of the father’s current incarceration, the children’s contact with the State of New York has virtually ceased. Now that the father, though his residency remains in New York, is no longer physically present therein, and he will not be for quite some time, there is no longer any available evidence in New York as to the children’s care, protection, training and personal relationships. Thus, under the circumstances, New York is an inconvenient forum and the State of New Jersey is a more appropriate forum.

Accordingly, New York declines to exercise jurisdiction over future petitions seeking modification of prior orders of custody and visitation concerning the parties and their children. Should the mother file a modification petition in New Jersey, the court urges the courts of the State of New Jersey to request copies of the prior petitions, orders and reports of the court at bar so that New Jersey may become aware of the extensive history of the parties and benefit from the court’s familiarity with their family.

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