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Court Rules on Separation Agreement

A petition to modify an order made by another court pursuant to the Family Court Act was filed in the County Family Court. The petitioner former husband of the respondent wife seeks sole child custody of his son.

A New York Family Lawyer said a decree of divorce was filed and entered. The decree was made by New York Supreme Court. The basis of jurisdiction for the decree was a separation agreement entered into between the parties in New York which had been adhered to by the parties for one year prior to the commencement of the divorce proceeding. The separation agreement entered into between the parties was filed in the County Clerk’s office. The terms of the separation agreement were incorporated, but not merged, in the decree of divorce.

A New York Child Custody Lawyer said the divorce decree ordered that all matters arising in the future pertaining to the enforcement of this decree or to requested modifications of any provision thereof, whether pertaining to child support, visitation or child custody, be and the same hereby are referred to the County Family Court or the appropriate Family Court having jurisdiction of the matter.

The separation agreement, which indicates that the parties were married in New York and lived in New York, provided that the wife shall have custody of the children of the marriage. The husband’s visitation rights were delineated in some detail.

The matter came on for a hearing. The former husband appeared before the County Family Court by counsel. The respondent wife failed to appear. The court was informed that the child who is the subject of the proceeding lives in Connecticut, but runs away and is currently in New York with the former husband. The matter was adjourned until July 28, 1981 at 9:30 a.m.

A Nassau County Child Custody Lawyer said on July 28, 1981, the matter came on before the court. There was no appearance by the former husband but he was represented by counsel. There was no appearance by the wife. A law guardian was appointed for the child and the matter was referred to the Probation Department for a child custody investigation. The matter was set down on the trial calendar.

In an envelope dated September 5, 1981, the court received from the wife a motion to dismiss the petition. The wife moves for dismissal on the grounds that the court lacks subject matter jurisdiction and that she was not served with notice of the proceeding in a timely manner. Also enclosed in the envelope were copies of papers prepared by the wife for a proceeding in Superior Court, Judicial District of New Haven at New Haven, Connecticut on September 10, 1981. The court received additional papers related to a proceeding in Connecticut from the wife.

The petitioner former husband submitted an affidavit in response to the wife’s motion to dismiss. He asserts that his son arrived from Connecticut by bus in the early morning hours of June 25, 1981, and that he had previously refused to return to his mother’s home in Connecticut following a visitation period, but had been persuaded to do so by his father. He states that the child who is the subject of the proceeding was born on March 21, 1967. The family resided in Queens County, New York until the time of the execution of the separation agreement on December 11, 1976. The separation agreement, he states, was originally filed on December 21, 1976, in Queens County. He prays the court to deny the wife’s motion to dismiss and argues that the court has jurisdiction to hear the pending matter.

A New York Child Custody Lawyer said it is customary in family court proceedings to proceed on oral motions. Usually a motion to dismiss for lack of personal jurisdiction is made at the initial hearing on a matter. Here, the wife made no motion, oral or written, at the first two appearances on this case. While it may be argued that by failing to raise an objection to the court’s personal jurisdiction over her in a timely manner, the wife waived her right to raise the issue at her convenience six weeks after the initial hearing date, the court will, in the interests of justice, consider the wife’s arguments.

There is no question but that the court has in personal jurisdiction over the respondent in this matter. The Family Court has jurisdiction to determine applications for the modification of the child custody provisions of a divorce decree with the same powers as those possessed by the Supreme Court when a referral has been made to the Family Court in the divorce decree. Pursuant to New York Domestic Relations Law, upon the application of either parent after such notice to the other party as the court shall direct, Supreme Court may modify any previous child custody order it has rendered. Thus, in New York, the Supreme Court has continuing jurisdiction over divorce decrees, and the Family Court sits with the power of the Supreme Court when a specific referral of jurisdiction has been made.

The wife’s contention that the New York court lacked jurisdiction to render the divorce decree is also without merit. The parties to the divorce were married in New York and resided in New York as husband and wife. The husband was a resident of New York at the time the divorce action based upon the provisions of a separation agreement entered into in New York was commenced, and he had been a resident of New York for a continuous period of one year immediately preceding the commencement of the action. New York law provides that in such a situation New York has personal jurisdiction over non-domiciliaries.

It is true that even though the Supreme Court had both the personal jurisdiction and subject matter jurisdiction necessary to enter a decree of divorce, it may have lacked the subject matter jurisdiction necessary to make a child custody determination. There is no doubt, however, that the court had personal jurisdiction over the wife at the time of the action for divorce and that this court has continuing jurisdiction over her at this time.

The wife complains of the notice she was given in this matter. The matter now before the court is a modification of an order of another court filed pursuant to the Family Court Act. Family Court Act allows service of a summons and petition to be made by delivery of a true copy to the person summoned at least eight days before the time stated therein for appearance. Whether or not such personal service is made, service by mail alone to the last known address of the person to be served at least eight days before the time stated in the summons for appearance is allowed. If service is by mail alone, no default may be entered without proof satisfactory to the court that the wife had actual notice of the commencement of the proceeding. In the written statement that accompanied her motion to dismiss, the wife states that she received a summons on July 14 which was signed on July 10th requiring her to appear before the court in Syracuse on July 24th–10 days later. Thus, the court finds that actual eight days notice was received by the wife in this matter. Her failure to appear subjects her to the possibility of a default judgment being entered against her.

It should be noted that Family Court Act was amended by the New York State Legislature in its 1981 Legislative Session. Thus, the court can presume that the Legislature intended that modifications of orders of child custody referred by the Supreme Court to the Family Court were to be governed by the procedural rules set forth in the Family Court Act, since these rules are special rules and vary from the civil practice rules in many ways.

At the time of the entry of the original divorce decree, the Uniform Child Custody Jurisdiction Act had become effective in New York. By its terms the law requires that jurisdiction over initial or modification of child custody matters be assumed only when certain jurisdictional prerequisites are met.

The first jurisdictional basis set forth is when New York is the home state of the child at the time of commencement of the child custody proceeding. Home state means the state which the child at the time of the commencement of the custody proceeding has resided with a parent for at least six consecutive months. The Appellate Division, Third Department has construed the provision to mean that if a child has lived for six consecutive months in a jurisdiction, even if he has lived for only a short time in the jurisdiction immediately prior to the commencement of a child custody proceeding, the court is not precluded from exercising its jurisdiction if other jurisdictional requirements are met. When it is in the best interest of the child that a court assume jurisdiction because the child and at least one contestant has a significant connection with the state and there is within the jurisdiction of the court substantial evidence concerning the child’s present or future care, protection, training, and personal relationships, a court of the state may assume jurisdiction. Indeed, it has been found to be error by the Appellate Division to refuse jurisdiction when it is in the child’s best interest to assume jurisdiction and there are significant contacts with New York and there is substantial evidence as to the child’s future care, protection, training, and personal relationships within.

The fact that another state may have jurisdiction does not prohibit this state from exercising its jurisdiction. 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.

In the present case the child has lived in New York off and on throughout his life, well over six consecutive months, although he had been in New York but a short while prior to the pending petition. The child’s father has significant contacts with New York. He lives in New York, he works in New York, he was married in New York, he signed a separation agreement granting child custody of his children to his former wife in New York, and he was divorced in New York.

There is also substantial evidence in New York as to the present and future care, protection, training and personal relationships of the child. The child’s views on custody, while not determinative, should be considered by the court.

The child is in New York. It is in the best interest of the child that the court assume jurisdiction. There is substantial evidence in the jurisdiction concerning the child’s present and future care, protection, training, and personal relationships. His father, with whom he is living, lives in New York. Information about his present and future protection, care, schooling, and other training is available in New York. Significant information about his personal relationships is available, since he is in New York and can testify before the court on the issue.

According to the federal law the jurisdiction of a court of a state that has made a child custody determination continues as long as the court has jurisdiction.

In the process of dealing with divorce, the husband and the wife most often fight to prove the other is better. If your partner succeeded in getting child custody and you want to be the one to have it, approach a New York Child Custody Lawyer together with a New York City Family Attorney from Stephen Bilkis and Associates.

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