This is an application by the defendant husband to modify a judgment of divorce in order to grant him child custody of his two daughters. A New York Family Lawyer said the divorce decree awarded custody of the children to the wife based upon a separation agreement which was incorporated into the decree.
Shortly after the decree was entered, the parties entered into an addendum to the separation agreement whereby child custody was changed to the defendant husband and his obligation for child support payments accordingly deleted. However, the judgment of divorce was never modified to reflect these changes.
Child custody of both daughters continued in the husband without interruption until the summer of 1980. A New York Child Custody Lawyer said that during the first half of this period, the wife exercised regular visitation in Rochester, New York, but she moved to the State of Texas. Following her relocation, she kept in contact with the children by telephone and had extended periods of visitation with them in Texas, primarily during the children’s summer vacations.
In the summer of 1980, the wife and the defendant husband reached an agreement, the exact terms of which are now in dispute, concerning a change in child custody for the younger daughter. A Westchester County Family Lawyer said the husband contends that he agreed to a temporary change in physical residence for the school year 1980-1981 with the daughter to return to Rochester at the close of the school year in May or June, 1981. The wife asserts it was agreed that the younger daughter was to remain in Texas permanently following the summer 1980 visitation.
In August, 1980, at the close of summer visitation, the elder daughter was returned to the custody of the father in Rochester, New York, while the younger daughter remained with the mother in Texas. Except for Thanksgiving vacation, the younger daughter continued to reside with her mother throughout the academic year 1980-1981.
The wife caused the defendant husband to be personally served in New York with a petition which commenced a Texas proceeding for child custody of both daughters. Upon the return date, the husband completely defaulted in the Texas proceeding.
On June 2, 1981 the Texas matter was reached for a hearing and the Texas court made an order appointing the wife as Managing Conservator [essentially custodial parent] and the defendant husband as Possessory Conservator of both children. The court also directed that the defendant pay child support for the younger daughter.
The June 10, 1981 decision expressly accorded full faith and credit to the divorce decree but makes no mention of the addendum to the separation agreement. Inasmuch as the petition requested that such full faith and credit be granted the divorce decree and likewise made no mention of the addendum to the separation agreement, the defendant husband contends that the addendum was never brought to the attention of the Texas court.
The day after the hearing, the wife permitted the younger daughter to fly to Rochester, New York, with a prepaid return airline ticket which scheduled her to leave for Texas six weeks later. Prior to his knowledge of the Texas order, the defendant husband obtained the instant order to show cause and returnable at Special Term. The order to show cause provided that the physical residence of both children was to remain temporarily with the husband and that the wife was restrained from removing the children from Monroe County, New York, and from interfering with or impeding the determination of the husband’s application.
The husband caused the instant order to show cause to be personally served upon the wife in Texas. It was subsequent to this service that the husband received by mail a copy of the order. Finally, the husband alleges that the wife and another individual abducted the younger daughter from a street corner in Rochester and drove her to Pennsylvania and ultimately back to Texas, despite efforts of the police to apprehend them.
At the present time, the elder daughter is with her father in Rochester, and the younger daughter is with her mother in Texas. The issue now before this court is whether or not it has jurisdiction to entertain the defendant husband’s application, given the prior Texas decree.
In this case, as in all interstate child custody and visitation disputes, the threshold question is which State properly may assume jurisdiction. Before applying the Uniform Child Custody Jurisdiction Act (UCCJA), reference to the Parental Kidnapping Prevent Act (PKPA) of 1980 must be made since the PKPA not only establishes a policy of Federal pre-emption in this area but also by virtue of the supremacy clause of the United States Constitution, it must be accorded priority.
The court concludes that assuming jurisdiction in this matter would indeed be consistent with the provisions of the PKPA as to both infants inasmuch as New York has jurisdiction over both pursuant to its own statute (the Uniform Child Custody Jurisdiction Act or UCCJA), and is the home state of the infant Christine and has continuing jurisdiction over the younger daughter.
There can be no doubt that at the time the instant proceeding was commenced by personal service of the order to show cause upon the wife, New York was the home state of the elder daughter, who had lived continuously in New York State from the time of the divorce in 1974, including the six consecutive months immediately preceding the commencement of this application. Thus, New York State has jurisdiction over the elder daughter pursuant to Domestic Relations Law.
As to the younger daughter, although New York undeniably was her home state from the time of the divorce in 1974 until the summer of 1980, it cannot be said that it remained so at the time of the commencement of the proceeding. Although she had been present in New York for approximately a month at that time, the court concludes that her home state had changed from New York to Texas when she took up residence with her mother for purposes of the school year 1980-1981 and continued to live there for a period in excess of six consecutive months.
Nevertheless, the court considers it to be in the best interests of the child for New York to assume jurisdiction pursuant to Domestic Relations Law because it finds that the child and at least one parent, the father, have a significant connection with this state and there is substantial evidence here concerning the child’s future care, protection, training and personal relationships.
Specifically, the court finds that the younger daughter has a significant connection to New York State in that she did in fact reside here from 1974, and presumably from birth, until the summer of 1980, so that she has lived here for most of her life, and longer than in any other jurisdiction. Her father, sister, stepmother, stepbrother and other relatives, with whom she appears to have normal relationships, continue to reside in this state.
Additionally, the original separation agreement and the addendum thereto which determined the younger daughter’s child custody were executed in New York State and provided that they were to be governed by and construed under the laws of New York State. Likewise, the 1974 divorce decree which incorporated the separation agreement and granted child custody of the younger daughter to her mother, and which was accorded full faith and credit in the State of Texas, was rendered in New York State.
Finally, there is substantial evidence in this state concerning the younger daughter’s future care in that it is in New York that the defendant husband proposes she return. Any evaluation of the reconstituted family created by the defendant husband’s remarriage in 1974, with which the younger daughter lived while in Rochester and which the defendant husband would have her rejoin, would necessarily be undertaken in Rochester, New York. The younger daughter’s medical and school records from the period of her residence, and a recent psychological evaluation, are in New York.
Having thus concluded that New York has jurisdiction over both children pursuant to the UCCJA, the court determines that U.S. Code is met. However, as stated above, the PKPA requires an additional showing once jurisdiction under state law has been established.
For the elder daughter, this additional requirement is met by virtue of the fact that New York was her home state at the time of the commencement of this action not only under the UCCJA, but also under the PKPA, as a result of her six-month consecutive residency in New York immediately prior to July 13, 1981.
For the younger daughter, the additional showing necessary to make jurisdiction consistent with the PKPA is a finding of continuing jurisdiction as defined in the U.S. Code.
The finding of continuing jurisdiction is predicated on the fact that at the time of the original divorce decree, New York unquestionably had jurisdiction due to the length of the parties’ residence in New York and New York was the home state of the children by any definition. Thus, the original decree was made consistently with the provisions of the PKPA.
Furthermore, New York did not lose state law jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), as shown above, despite the removal of the younger daughter to Texas. Additionally, one contestant, the father continues to reside in New York. Therefore, both requirements of the PKPA are met.
The court notes that New York retains continuing jurisdiction under the federal statute even if Texas could have properly asserted jurisdiction under its own state law at the time the Texas proceeding was commenced in April or May of 1981. One of the basic principles of the PKPA is that it confers exclusive and continuing jurisdiction on the home state once it has been established.
In conclusion, the court finds that New York has jurisdiction pursuant to the Parental Kidnapping Prevention Act (PKPA) and the Uniform Child Custody Jurisdiction Act (UCCJA) to entertain defendant’s application to modify the prior New York child custody decree, despite the interim Texas order.
In construing the PKPA, the court is cognizant that one of the purposes of this legislation is to deter interstate abductions and other unilateral removals of children undertaken to obtain child custody and visitation awards. Given the statement of purpose, the court cannot ignore the defendant husband’s unrefuted allegations that the wife in effect abducted the younger daughter from New York to Texas.
Finally, the court notes, without condoning the defendant husband’s default in the Texas proceeding, that there has never been a plenary hearing on the issue of child custody of the two daughters.
The court does not address any issues which may remain concerning jurisdiction to award child support, as opposed to child custody, inasmuch as they are contingent upon the outcome of the custody determination. An appropriate order in accordance with the above, referring the matter to a hearing, may be submitted.
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