Published on:

Petitioner Claims Respondent is in Contempt of Visitation Order

Petitioner A and Respondent B, residents of the State of Indiana, separated in July 2000. A seeks custody of C, their sixteen year old child. B moved to Illinois after the separation while A and C and their other children continued to reside in Indiana. A New York Family Lawyer said a divorce action was commenced in Indiana and the parties were divorced in 2001. Their settlement agreement provided custody of the unemancipated children to A and established B’s visitation rights.

A New York Child Custody Lawyer said A and C were granted permission by the Indiana Court to relocate to the State of New York in May 2002. The order directed visitation for B to take place in Illinois so he petitioned for finding of contempt arising out of visitation disputes. The Indiana Court found both parties in contempt but it did not order any change in custody.

By order of the Indiana court dated 25 September 2002, Diane was again found in contempt for failure to comply with B’s visitation rights. However, the Court found that it was not in C’s best interest to move her to Illinois to live with her father. By this time, neither the parties, nor the children, resided in Indiana.

B filed another contempt petition in December, 2002, again alleging that he had been denied visitation. A hearing was scheduled for 18 February 2003. A asked for a continuance but the request was denied and the Court entered an order by default on 19 February 2003. That order awarded custody to B. The order made no provision for visitation by A.

A Nassau County Family Lawyer said in 20 February 2003, B filed a petition in New York State in Family Court, Erie County. He seeks enforcement of the Indiana order granting him custody. That same day, A filed a petition in Family Court, Erie County. She seeks a modification of the Indiana Court’s custody order, although which order she was referring to was ambiguous. She asks for suspension of B’s visitation, and such other relief as the Court might direct.

A Nassau County Child Custody Lawyer said both petitions were heard on 21 February 2003. B’s petition was granted. The court ordered that the 19 February 2003, Indiana order would continue in effect, thus requiring A to send C to Illinois to reside with her father. This was a final disposition of that petition. The court appointed a law guardian to represent C and adjourned A’s petition for further proceedings on 27 March 2003. At that time, he granted her temporary visitation and adjourned the matter until June 3, 2003 for further proceedings.

C moved to Illinois with her father on 21 February 2003. On 8 May 2003, the court signed an order to show cause filed by the law guardian, directing B to show cause why the 19 February 2003, order of the Indiana Court should not be denied enforcement and why custody should not be awarded to A. The case was then transferred to this court. A second order to show cause, also submitted by the law guardian, was granted on 19 May 2003, granting interim relief directing that C temporarily reside with A. These orders to show cause were based upon allegations of emotional abuse causing C to suffer depression, weight loss and thoughts of suicide. No new petitions were filed. The orders to show cause sought a temporary order, during the pendency of this case, changing custody.

On 3 June 2003, the parties appeared and the Court contacted the Indiana court to discuss the matter, pursuant to§76-e of the Domestic Relations Law. The Indiana court indicated that it would not decline jurisdiction. Enforcement proceedings were continuing in that court, which issued an order on 2 June 2003, directing that C be returned to B in Illinois.

The court, therefore, directed the parties to submit briefs on the question of whether or not it had jurisdiction and scheduled oral argument on 16 June 2003.

By order dated 18 June 2003, the court partially granted the orders to show cause. It ruled that New York was C’s home state and that the court had jurisdiction to entertain A’s custody petition. The order directed that temporary residence remain with A and that she had authority to enroll C in school and to make health and education decisions. The law guardian’s demand for temporary custody was, implicitly, denied, and the case was set for trial on the petition seeking a modification of custody. A subsequent motion seeking, in effect, to reargue or renew, was denied by order dated 2 October 2003.

On 22 January 2004, B has now served another motion characterized as a motion to dismiss but again seeking to re-litigate the jurisdictional issues previously decided by this Court.
This case requires a determination of jurisdictional issues between this Court and the Indiana Court, which made the initial child custody determination. Jurisdiction is governed by Article 5-A of the Domestic Relations Law, the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). This act is intended to resolve jurisdictional disputes that arise when custody proceedings are brought in New York and another forum, as is happening here in this case.

B has argued, and continues to argue, that by enforcing the Indiana Order, the court finally decided the issue of which state’s Courts have jurisdiction over custody proceedings. That is not true. The court ruled that the Indiana Court had jurisdiction to issue its 19 February 2003, order holding A in contempt and modifying its previous custody order. He did not rule on whether or not New York Courts had jurisdiction to modify the 19 February 2003 order. In fact, he adjourned A’s petition for further proceedings. Although B interprets his intention as being solely to consider A’s visitation, no order so limited the issues and A’s petition can certainly be interpreted as demanding relief beyond visitation.
The Indiana Court made the initial custody determination in this case at a time when Indiana was C’s home state. It unquestionably had jurisdiction to make that determination. After that Court granted A permission to move to New York State with C, however, the home state, an important consideration under the UCCJEA, changed. According to Domestic Relations Law §76(1)(a), New York became the home state for C six months after she moved to New York. This fact, alone, would not be enough to vest jurisdiction in the New York State Courts. However, B had already moved his residence from Indiana to Illinois by the time the Indiana Court granted permission for C’s move. Once A and C moved to New York, none of the parties resided in Indiana.

Under §76-a(b) of the Domestic Relations Law, exclusive continuing jurisdiction to make custody determinations ends when it is decided by a court of either state that the child, the child’s parents and any person acting as a parent do not presently reside in the state that made the initial custody determination. The fact that none of the parties reside in Indiana is undeniable. The court made such a determination in its order of 18 June 2003. Thus, the Indiana Court no longer possesses exclusive, continuing jurisdiction.

Jurisdiction to modify custody determinations is governed by §76-b of the Domestic Relations Law. It provides that, except in emergency situations, 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 and a court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.

As deliberated above and ruled by the court in June of last year, New York State was C’s home state at the time A commenced this proceeding. She resided here from her initial move in June 2002, until the court ordered her to be sent to Illinois with her father in February 2003, a period in excess of the six months required by the statute. Indiana was not her home state when the decision transferring custody to B was made. Her absence from this state between February and May of last year did not exceed six months so that, under the terms of §76(1)(a), her home state did not change to Illinois. Again, it is undisputed that none of the family members reside in Indiana, and none has since June, 2002. Thus, under the clear terms of §76-b, this Court has jurisdiction to modify the Indiana Court’s custody determinations. It is not necessary for this Court to consider whether or not temporary emergency jurisdiction exists under §76-c.

The UCCJEA, as enacted in New York, also provides, in Domestic Relations Law §76-e, for conflicts between simultaneous proceedings in different states, as in this case. Subsection 3 of that statute provides the court which has before it a petition to modify an Indiana custody determination, three options regarding the enforcement procedure pending in Indiana. The Court may stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement, enjoin the parties from continuing with the proceeding for enforcement or proceed with the modification under conditions it considers appropriate.

As §76-e(3)(b) shows, a modification proceeding takes precedence over an enforcement proceeding. It should also be noted that Indiana, because it is not the residence of anyone involved in this case, is not exercising jurisdiction in substantial conformity with Article 5-A, as required for this Court to defer to its jurisdiction under §76-e. Indeed, this issue was recognized by the Indiana Court when B appeared on his contempt proceeding. The transcript indicates that the Indiana Court was skeptical of the enforceability of its order transferring custody, since C resided in this state and Indiana no longer had any connection to the parties or the child. Nevertheless, when this Court contacted the Indiana Court pursuant to §76-e(2), it declined to relinquish jurisdiction. For the reasons stated above, this Court is not bound by that decision.

In his continued attempts to re-litigate the issue of jurisdiction, B overlooks the importance of the fact that neither he, A nor C reside in Indiana. This fact is key to determining jurisdiction and the relevant statutes clearly cite such a circumstance as ending the continuing exclusive jurisdiction of the Indiana Court.

In S. Frederick P. v. Barbara P., similar facts existed. The mother had removed her children to New York State while there was a custody order in place from a Texas Court. Although the case was decided under the former Uniform Child Custody Jurisdiction Act, precursor to the UCCJEA, the relevant legal issues were the same. The Court in that case based its decision that it did not have jurisdiction on the fact that the father continued to reside in Texas.

In this case, if Bernard continued to reside in Indiana, the Court’s decision would certainly be different. But that is not the case.

Given all of the circumstances, the Court believes the best course of action is to enjoin B from continuing enforcement proceedings in Indiana. The matter should be resolved in New York State based upon the issue of whether or not there has been a change in circumstances such that it is in the best interests of the child to change custody to A. No such consideration was included in the Indiana Court’s decision transferring custody to B on the basis of a default.

Trial has been scheduled in this case for 7 April 2004. The issue at that trial will be whether or not there has been a change of circumstances since the Indiana Court’s order transferring custody, such that it is in the best interests of the child that custody be returned to A. The question of jurisdiction has been settled, on multiple occasions, and is the law of the case. The court will not expect further arguments or evidence regarding jurisdiction.

The court denies B’s motion to dismiss. Further, the parties are enjoined from pursuing pending enforcement proceedings in the State of Indiana.

New York Family Attorneys, New York Child Custody Attorneys and Stephen Bilkis & Associates are the best choice in representing you if you are faced with issues like the one mentioned above. We are experts when it comes to family law and custody hearings. Please feel free to contact us at our toll free numbers or visit us in our firm so we can hear your case and extend our legal assistance.

Contact Information