New York Family Law Blog
A New York Family Lawyer said the complainant husband seeks to modify a separation agreement entered into with his former wife. The defendant wife was granted child custody of their three minor children.
The issue before the court is whether it has jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA) to entertain the husband’s application.
The parties were married in Rochester, New York and subsequently resided in this state as husband and wife. A New York Child Custody Lawyer said the three children were born in New York State during the course of the marriage. The parties entered into a separation agreement in same state. The separation agreement was incorporated into, but survived, a New York State decree of divorce.
Shortly after the divorce was granted, the defendant wife moved to Florida with the children where she remarried. Currently there is some indication in the record before the court that the defendant wife and her new husband intend to move elsewhere because of the husband’s occupation.
Following the defendant wife’s removal to Florida and remarriage, problems arose between the husband and the defendant wife regarding visitation.
By order to show cause returnable at a Special Term of the New York State Supreme Court, the husband sought to change the child custody provisions of the separation agreement so as to award child custody to himself. In response, by order to show cause, the wife sought to eliminate or severely restrict her former husband’s visitation rights.
A Manhattan Family Lawyer said the matter was heard by a Honorable Justice who ordered a social investigation to be performed in Rochester and further ordered that upon completion of the investigation a child custody hearing be held, and additionally ordered that the husband be permitted visitation with his children when they were in Rochester for the purposes of such investigation.
Subsequently, by order, the same court directed that a Florida home study investigation be obtained, and further ordered that the former husband be permitted a six week summer visitation period with his children. The local social investigation and the Florida home study are now complete, and are available to the court to aid it in a child custody determination.
The former husband’s instant application seeks to hold the wife in contempt of court for violation of the visitation provisions of a Justice’s order. A New York Child Custody Lawyer said in response, the wife’s attorney raises for the first time the issue of lack of jurisdiction under the Uniform Child Custody Jurisdiction Act, inasmuch as Florida is now the home state of the children.
Although the husband strenuously argues that his former wife’s jurisdictional objection is untimely, the court finds that the wife has not waived this objection, since a motion to dismiss for lack of subject matter jurisdiction may be made at any time.
The statutory provisions relevant to the jurisdictional issue are found in Domestic Relations Law which provides in pertinent part that court of the state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree only when the state is the home state of the child at the time of commencement of the child custody proceeding, or had been the child’s home state within six months before commencement of such proceeding and the child is absent from the said state because of his removal or retention by a person claiming his child custody or for other reasons, and a parent or person acting as parent continues to live in this state. It further provides that it is in the best interest of the child that a court of the state assume jurisdiction because the child and his parents, or the child and at least one contestant, have 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. Furthermore, physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.
It is clear that Florida was the children’s home state as defined by statute at the time the proceeding was commenced by order to show cause, inasmuch as the children had resided in Florida for six consecutive months at that time. Therefore, Florida would have had jurisdiction to entertain the husband’s application at that time pursuant to Domestic Relations Law as set forth above, and will continue to have jurisdiction so long as the children reside in Florida.
The court concludes, however, that New York State also had jurisdiction at the time of the commencement of the custody proceeding, and continues to have jurisdiction, by virtue of the Domestic Relations Law.
The court finds that the children have a significant connection to New York State in that all three were born in New York and lived in the said state for a number of years, the eldest child, now twelve, for approximately ten years.
Both parents have a significant connection to New York State in that they resided as husband and wife, and both have relatives who continue to reside in the Rochester, New York area. The husband has an even greater connection to New York State than his former wife in that he continues to live and work, and it is in the home of his parents that he proposes to bring his children in the event he is awarded child custody.
Of utmost significance is the fact that New York State made the original child custody determination. As was recently stated in a case where the original divorce decree awarding custody was made in New York, the courts of other States where the Uniform Child Custody Jurisdiction Act (UCCJA) 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.
The children and their mother have returned to Rochester, New York, on several occasions for purposes of visitation, which suggests that their ties to this state were not completely severed by moving to Florida.
Finally, the court notes that there is substantial evidence within this jurisdiction, including the two completed social investigations, concerning the children’s welfare and status. Having determined that New York State has jurisdiction to consider the child custody matter, the court must consider the question of whether jurisdiction should be declined on the grounds of forum non conveniens (a discretionary power that allows courts to dismiss a case where another court, or forum, is much better suited to hear the case).
A court which does have jurisdiction is empowered under the Domestic Relations Law to decline to exercise it if it finds it is an inconvenient forum and a court of another state is a more appropriate forum.
It is unclear whether the wife intends to remain in Florida with the children, but even should she do so, it cannot be said on the facts of the case that Florida has a closer connection with the children than New York, or that substantial evidence concerning the children is more readily available in Florida than in New York. It follows that Utah or any other state to which the wife and the children may relocate would have even less claim to being the appropriate forum.
Inasmuch as the court cannot find another state which would be a more appropriate forum for the determination of the child custody issue raised than the State of New York, the court will not decline jurisdiction on the basis of forum non conveniens.
To summarize, the court has determined that New York State has jurisdiction and that New York State is not an inconvenient forum, all in accordance with the Uniform Child Custody Jurisdiction Act.
Parents always hope for the best interest of their children but sometimes it is not the only important thing to consider. If your partner wants to gain custody of your children and is considering moving out to a place far from you, approach a New York City Family Attorney together with a New York City Visitation Lawyer from Stephen Bilkis and Associates.