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Father Seeks Full Custody

On 22 September 2004, by order to show cause, plaintiff father moves for an order to modify the provisions of the parties’ judgment of divorce, dated 24 April 2002, so as to grant him full legal and residential custody of the child of the marriage, born January 1, 1997; appoint a law guardian to represent the interests of said child; and, directing that the residence of said child remain within the State of New York pending the hearing of this application.

A New York Family Lawyer said the order to show cause granted a temporary restraining order providing that the child shall remain in New York and shall not be removed from the jurisdiction pending hearing of the application. By order to show cause dated 20 October 2004, defendant mother moved for an order directing plaintiff to immediately return the child to her, as his custodial parent.

This case sprung from the marriage of the parties in Brooklyn on 31 October 1996. Defendant gave birth to the child on 1 January 1997 in Norway; defendant had returned to Norway to avail herself of health insurance coverage and to be near her family. A New York Custody Lawyer said the child and defendant mother returned to Brooklyn soon after the child’s birth and the family resided in Kings County, New York, throughout their marriage.

A Manhattan Family Lawyer said shortly after plaintiff commenced the underlying divorce action, by written document dated 8 March 2002, the parties agreed that, among others:

1. Defendant will reside in Norway with their son [the child], for the period of time from the summer of 2002 up to and including the summer of 2004. This change in residence is being done to further defendant’s education.

2. During this period of time, defendant will make available and bring his child to the United States to visit plaintiff as frequent as a basis as possible; at no time though, interfering with the child’s or the defendant’s class schedule or educational commitments.

3. During this period of time, the child will be enrolled in a school in Norway.

Plaintiff alleges that he also agreed to pay the child’s direct living expenses, such as school tuition, clothing and other necessities, as well as the expenses incurred when the child visited with him during each of the child’s school vacations. Plaintiff further asserts that the parties’ agreement contemplated that defendant and the child would return to Brooklyn at the end of the two-year period, in June 2004.

By judgment dated 24 April 2002, the parties were divorced. Pursuant to the divorce, the mother and father shared joint custody of the child who was to reside with his mother. The father was to have “reasonable rights of visitation away from the custodial residence.” As is also relevant here, the judgment provided that “the Family Court shall have concurrent jurisdiction with respect to any future issues of maintenance, support, custody and visitation.”

In June 2002, the mother and the child relocated to Norway in accordance with the 8 March 2002 agreement. During 2002 and 2003, he spent extended time with plaintiff during his school recesses. Thereafter, plaintiff’s contact with his son was limited; plaintiff contends that defendant changed her residence and did not provide plaintiff with her address or telephone number. In early June 2004, plaintiff received a letter from defendant’s attorney, advising him that defendant was engaged to a local man, that she did not want to return the child to New York and that she wanted plaintiff to agree to allow the child to reside in Norway permanently. The letter further advised plaintiff that until the situation was resolved, defendant did not wish to travel to the United States with the child. Plaintiff accordingly retained an attorney to respond to that letter and defendant agreed to allow plaintiff’s mother and sister to bring the child to Brooklyn to visit with him from 10 September 2004 through 2 October 2004. Once the child was in Brooklyn, plaintiff refused to return him to defendant and the instant proceeding was commenced. Defendant arrived in New York on 18 October 2004, seeking to obtain custody of the child.

To support his request that he be awarded legal and residential custody of the child, plaintiff alleges that the child told him that he was not involved in any extracurricular activities or organized sports, that he didn’t do anything most of the time, that the child would receive a better education in Brooklyn, from the private school where he is currently enrolled and where he attended prekindergarten and kindergarten, than he would receive in public school in Norway, that he is engaged to a woman with whom the child is very comfortable and that he and his fiancée intend to create a strong home life for the child. Plaintiff also asserts that defendant has not provided the child with a stable life in Norway, since “he was shuffled around on a regular basis”; she gives him sleeping pills so that he will sleep; he has to share a room with the daughters of defendant’s fiancée he is withdrawn and afraid to be alone; and he is “expressing matters of a sexual nature in a way that is far too advanced for his age,” which plaintiff believes is the result of the child witnessing his mother and her boyfriend engage in such activity. Plaintiff further points out that defendant’s life had been permanently based in New York when the custody arrangement was put in place, since she had moved to New York in 1991 and had worked here and obtained a green card. Hence, plaintiff had no reason to believe that she would not return the child to Brooklyn after she completed her education. Plaintiff also avers that he has learned that defendant’s engagement has been ended, so that she no longer has a reason to refuse to return to New York.

Plaintiff now requests that a law guardian be appointed to represent the child’s interests in this proceeding, since the child “can speak for himself” and “state his desires and the reasons behind them,” even though he is only 7½ years old. Plaintiff also alleges that he wishes that the child and his mother continue to see each other and that a parental access agreement so providing was put in place shortly after she arrived in New York.

Defendant opposes plaintiff’s demand for relief, arguing that the child should return to Norway, where he has lived for the past 27 months and where he has an extensive family. Defendant further asserts that the child attends school there, is happy, well-adjusted and participates in numerous extracurricular activities, including soccer and band. Further, the child is comfortable with her fiancée, whom she plans to marry. They live in a private, three-bedroom home that is located on an acre of land and has a built-in swimming pool; although the child shared his bedroom with the seven-year-old daughter of her fiancée, it was a large room and the children were always properly supervised. Defendant denies the remaining accusations made against her by plaintiff.

Defendant also asserts that she supports the child on her salary as a licensed nurse and that plaintiff does not contribute any money; a support agency in Norway has determined that plaintiff’s support obligation is 11% of his income. Defendant also argues that this court does not have jurisdiction over this matter, since plaintiff abducted the child and Norway is his home state for purposes of this custody dispute. Defendant does not oppose plaintiff’s request for the appointment of a law guardian.

A Manhattan Child Custody Lawyer said the court held that this custody dispute appears to be a case of first impression on the issue of continuing exclusive jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in a post judgment matrimonial case. Few cases have yet to address the issue of the application of the newly enacted UCCJEA, which replaced the Uniform Child Custody Jurisdiction Act (UCCJA) as of 28 April 2002.

Accordingly, in seeking to determine applicability, the court must be guided by the legislative intent, which provides that:

“This act shall take effect 180 days after it shall have become a law and shall apply to all actions and proceedings commenced on or after such date; provided, however, that a motion or other request for relief made in a child custody proceeding or to enforce a child custody determination which was commenced before the effective date of this act shall be governed by the law in effect at the time the motion or other request was made.”

In applying these guiding principles, the court also notes that it is an anomaly in matrimonial practice in New York State that parties are allowed to litigate ad infinitum, under the same index number, seeking post judgment redress. It appears that with the exception of an action to enforce a money judgment, however, it is appropriate in a post judgment proceeding just like a new proceeding to require personal service anew in order to gain jurisdiction over a party.

The court finds it relevant that the underlying divorce action is no longer pending, since the judgment of divorce was signed on 24 April 2002. It is clearly established law that an action terminates in a judgment. Also relevant is the fact that the parties’ judgment of divorce provided that Family Court shall have concurrent jurisdiction over issues of custody and visitation. Pursuant to Family Court Act § 652 (b) (ii), the Family Court may “determine an application to modify the order or judgment awarding custody or visitation upon a showing that there has been a subsequent change of circumstances and modification is required.”

In view of the above, the court rejects defendant’s assertion that the UCCJA controls because the underlying divorce action was commenced 7 March 2002. In so holding, the court first recognizes that the legislative intent indicates that the prior law was intended to apply to “a motion or other request for relief made in a child custody proceeding or to enforce a child custody determination which was commenced before the effective date of this act”. Thus, since this application to change custody was brought by order to show cause dated 22 September 2004, long after the effective date of 28 April 2002, the UCCJEA controls.

That this is the only conclusion that may be reached is further supported by the fact that the parties had the option of commencing the instant proceeding by supplemental petition filed in the Family Court in accordance with Family Court Act § 652 (b) (ii), which would certainly be characterized as a new proceeding pursuant to the UCCJEA. Thus, if the UCCJEA is not held to apply to situations such as the one at bar, the UCCJA would be held to control in applications to modify custody brought in the Supreme Court, while the UCCJEA would control in applications to change custody brought in Family Court where a new petition clearly would need to be served in the present dispute. Enactment of the UCCJEA should not be interpreted in a manner that would allow such blatant forum shopping.

As held in Matter of Brillhart v D’Andreamatteo, if Domestic Relations Law § 75 is not so interpreted, the UCCJA, and not the UCCJEA, would be controlling far into the future, until all children born to parties whose judgment of divorce was signed prior to 28 April 2002 reach majority. Had this been the intent of the Legislature, the effective date of the statute would more appropriately have been controlled by the date of the judgment of divorce, rather than by the date of the commencement of the proceeding. UCCJEA did not apply because the subject contempt petition, in which petitioner alleged that respondent violated the court’s 1998 visitation order, was filed prior to 28 April 2002. Holding that the UCCJA is applicable to all custody disputes for parties divorced prior to 28 April 2002 would defeat the public policy of this state established in the UCCJEA which includes the new concept of continuing exclusive jurisdiction. Accordingly, the court concludes that the UCCJEA applies to the instant dispute and the Legislature obviously intended it to apply to all applications to modify custody where such applications are made after the effective date of the statute.

Having so held, defendant’s sole reliance upon former Domestic Relations Law § 75-d to establish jurisdiction on the sole concept of a six-month home state rule is misplaced. In addressing the issue of jurisdiction, it must first be noted that pursuant to Domestic Relations Law § 75-d, “a court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying this title and title two of this article.” Pursuant to Domestic Relations Law § 76-a, the court of New York, as the court that issued the most recent custody determination, retains exclusive and continuing jurisdiction over the instant custody dispute:

“1. Except as otherwise provided in section seventy-six-c of this title, a court of this state which has made a child custody determination consistent with section seventy-six or seventy-six-b of this title has exclusive, continuing jurisdiction over the determination until:

“(a) 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

“(b) a court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.”

The recent case of Stocker v Sheehan may be used as a guide in determining this case, in which the Appellate Division, First Department, applied the “exclusive, continuing jurisdiction” provision of the Rhode Island UCCJEA, which is substantially similar to the New York provision. Therein, the court held that New York did not have jurisdiction over an application to modify the parties visitation because a Rhode Island court had issued an order allowing the mother to relocate to New York, subject to extensive visitation; the father continued to reside in Rhode Island; and there was no showing that the Rhode Island courts had declined to exercise jurisdiction granting a petition to change custody.

It is clear that New York possesses exclusive, continuing jurisdiction of the parties’ custody dispute pursuant to Domestic Relations Law § 76-a, since plaintiff continues to reside in New York. When the custodial parent and child relocate, leaving the non-custodial parent in New York, this state continues to possess jurisdiction unless and until a New York court finds the lack of a significant connection. The court declines to find that the parties no longer have a substantial connection with this jurisdiction, since the continued to return to New York for lengthy visits with his father throughout the time that he and his mother resided in Norway and there was a written agreement which provided the period of time that the child was to be in Norway.

The essential principle is that a state which maintains exclusive, continuing jurisdiction may entertain and determine a modification action. That this court should continue to exercise jurisdiction is also supported by the fact that pursuant to the 8 March 2002 agreement executed between the parties in New York, defendant agreed to return the child to New York after the summer of 2004; the courts of New York should accordingly retain jurisdiction to enforce that agreement. The parties intended for New York to be considered the child’s permanent home state and that this agreement was nothing more than a temporary relocation agreement, pursuant to which both parties agreed to allow the child to temporarily leave the state for a fixed period of time.

Pursuant to the federal Parental Kidnaping Prevention Act (28 USC § 1738A [PKPA] jurisdiction of the court is also proper. It was intended to promote uniformity concerning child custody and visitation as to children who move from one state to another and to bring those laws into conformity with federal law, including the Parental Kidnaping Prevention Act. Pursuant to the PKPA, a child custody or visitation determination made by a court of a state is consistent with the provisions of the section only if the court has jurisdiction under the law of such state:

“The Federal Parental Kidnapping Prevention Act (PKPA), which was enacted shortly after the UCCJA and is binding on the states by virtue of the constitutional supremacy clause, established a rule equivalent to exclusive, continuing jurisdiction through the following provision:

“`The jurisdiction of a State which has made a child custody determination consistently with the provisions of this section continues as long as … such state remains the residence of the child or of any contestant.

These requirements have been met herein. The court rejects the plaintiff’s contention that the child has been kidnapped and should be returned to Norway. While certainly the court does not condone the “ruse” by which the child was returned, both parties were engaged in seeking prompt judicial intervention and the mother clearly and intentionally violated the parties’ 8 March 2002 agreement.

Supreme Court, Kings County, has exclusive, continuing jurisdiction over the instant custody dispute and the court will hear this matter. The court directs the child to continue to reside in New York State pendente lite, and that neither party shall remove him from the state, or cause him to be so removed, without permission from the court.

If you are at a loss or you find yourself in the same predicament akin to the case discussed above, please feel free to contact our toll free numbers or pay our office a visit because Kings County Divorce Attorneys, Kings County Child Custody Attorneys and Stephen Bilkis and Associates are able and willing to give you their legal advice to help you with your problem.

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