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Court Decides Case in Light of Domestic Relations Law 76

A New York Family Lawyer said this is a visitation proceeding from which a father appeals from an order of the Family Court, Kings County dismissing his petition for visitation on the ground of lack of jurisdiction.

According to his petition and hearing testimony, he and his wife were divorced in November 1999 by a judgment of a New York court. A New York Custody Lawyer said the matrimonial court, inter alia, awarded custody of the parties’ children to the mother. The mother relocated with the children to the State of Pennsylvania, where they have lived since 2000. On or about 12 May 2004, the father filed the instant petition with the Family Court for his rights to visitation.

The court ruled that the Family Court did not have jurisdiction to make an initial child custody determination in relation withDomestic Relations Law § 76, because the children and their mother had lived in Pennsylvania for approximately four years, the Pennsylvania courts would have jurisdiction over the matter, and there was no indication that a court with jurisdiction had declined to exercise it because New York was the more appropriate forum. The court, however, stresses the importance of Domestic Relations Law § 76-a (1), i.e., a New York State court may have “exclusive, continuing jurisdiction” over a prior child custody determination made pursuant to Domestic Relations Law § 76.

The parties, in this case, did not dispute that there was a prior child custody determination made by a New York court. A Westchester County Family Lawyer said the Family Court, unfortunately, failed to determine whether it had exclusive, continuing jurisdiction pursuant to Domestic Relations Law § 76-a (1). Relevant to that determination, the Family Court did not consider whether the children and their mother lacked a significant connection with New York, or whether substantial evidence was no longer available in New York concerning the children’s care, protection, training, and personal relationships.

A Westchester County Custody Lawyer said as held in the case of Matter of Koch v Andres, moreover, the paucity of information in the record precludes a finding that the evidence demonstrated that the mother and children did not have a significant connection to New York or that relevant, substantial evidence is no longer available in New York.

In Matters of Rey v Spinetta, Even if the Family Court had jurisdiction under Domestic Relations Law § 76-a (1) (a), “pursuant to Domestic Relations Law § 76-f, a court of this state which has jurisdiction may decline to exercise it if it finds that New York is an inconvenient forum and that a court of another state is a more appropriate forum”.

The court, however, is required to consider the factors set forth in Domestic Relations Law § 76-f (2) (a)-(h) and allow the parties to submit information regarding these factors before determining that New York is an inconvenient forum.

Because the Family Court did not determine whether it had exclusive, continuing jurisdiction pursuant to Domestic Relations Law § 76-a, the court would like to remit the matter to the Family Court, Kings County, for a determination of that issue, and, if the Family Court determines that it does have exclusive, continuing jurisdiction for a further determination, based on the relevant statutory factors, of whether New York is an inconvenient forum and the courts of another state are a more appropriate forum.

The order of the Family Court, Kings County dismissing the father’s petition for visitation on the ground of lack of jurisdiction is reversed by the court, on the law, without costs or disbursements. The petition is reinstated and the matter is remitted to the Family Court, Kings County for further proceedings consistent with the principles of law and guidelines mentioned in the ruling.

Would you risk losing your visitation rights over your children? That is tantamount to cutting strings that bind a family together. Do not deprive yourself of the opportunity to touch your children’s lives and make them feel loved. Kings County Divorce Lawyers, Kings County Child Custody Lawyers and Stephen Bilkis and Associates make sure you get the chance to strengthen your ties with your loved ones. Call us at our toll free number or visit our office.

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