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Father Seeks to Modify Restraining Order Against Him

A New York Family Lawyer said in a proceeding pursuant to Family Court Act article 8 and Domestic Relations Law article 5-A (Uniform Child Custody Jurisdiction and Enforcement Act), the father appeals from an order of the Family Court, Nassau County, which, without a hearing, dismissed without prejudice his petition, in effect, for a modification of an order of protection of the Superior Court of the State of California, Alameda County, which, after a hearing, inter alia, directed him to stay away from the mother and the parties’ three children for a period of five years.

A Nassau County Family lawyer said that the mother and the father lived together in New York for approximately 14 years, without marrying. They have two daughters and a son. Thereafter, the mother took the children to California, allegedly to escape physical and emotional abuse by the father. Later on, the father filed a petition in Family Court, Nassau County, seeking custody of the parties’ two daughters. The parties’ teenage son returned to New York to reside with the father.

Thereafter, a New York Divorce Lawyer said the mother filed a “request for order” in the Superior Court of California, Alameda County (hereinafter the California court), seeking an order of protection against the father, and in favor of herself and the three children. In the California court, she also filed a request for custody of the children. In her papers, the mother informed the California court of the pending custody proceeding in New York. Nonetheless, the California court failed to communicate with the Family Court.

A Queens Family Lawyer said after a hearing, the California court issued a five-year order of protection which, inter alia, directed the father to stay away from the mother and the three children. The California court issued a separate order granting custody of all three children to the mother, with no child visitation for the father. These orders included the parties’ teenage son, although he was not in California at the time, and continued to reside with the father in New York.

A Long Island Family Lawyer said the California court and the Family Court communicated to determine jurisdictional issues pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter the UCCJEA). The courts agreed that New York was the “home state”, and that the California court, in issuing the orders of protection and custody, had acted solely in the exercise of its temporary emergency jurisdiction under the UCCJEA.

In the New York custody proceedings, the mother caused the California order of protection to be registered in the Family Court, which issued a New York order of protection with the same terms and conditions. By order, the Family Court granted the father temporary legal and physical custody of the parties’ son, with child visitation for the mother as agreed upon by the parties. At a court conference, the parties wanted to enter into a so-ordered stipulation providing for, inter alia, the father’s child visitation with one of the parties’ daughters, but the court declined to sign it, citing a potential conflict with the California order of protection.

The father thereafter filed the instant petition, in effect, for modification of the California order of protection. Without addressing the merits, the Family Court dismissed the father’s petition, without prejudice, for lack of jurisdiction. The father’s separate custody proceeding, which, as noted, was initiated in the Family Court prior to the mother’s initial filing with the California court, is pending. According to the parties, the Family Court has held the record in the custody proceeding open, pending the determination of this appeal.

The Court reversed, reinstated the father’s petition, in effect, for modification of the California order of protection, and remit the matter to the Family Court for a determination of the father’s petition on the merits.

Under the circumstances presented, as the California court agreed, New York is the “home state” of the children with jurisdiction to make a “child custody determination,” including a custody and child visitation order. Obviously, that jurisdiction carries with it the power to modify the California order of protection, as appropriate, in order to effectuate the child custody determination of the Family Court.

Indeed, California’s version of the UCCJEA implicitly recognizes as much. The provision governing its authority to exercise temporary emergency jurisdiction states, in pertinent part, that if a child custody proceeding has been commenced in the home state, which is the case here, then “any order” issued by the State of California “must specify in [its] order a period that the court considers adequate to allow the person seeking an order to obtain an order from” the home state. The statute further provides that the California order “remains in effect until an order is obtained from the [home state] within the period specified or the period expires”.

Furthermore, in aid of the latter provision, the California statute further states that upon being informed that a child custody proceeding has been commenced in the home state, as the California court was in this case by the mother’s papers, the California court exercising temporary emergency jurisdiction must communicate with the home state. The California court failed to do so in this case, prior to issuance of the order of protection. Thus, the opportunity the statute contemplates to set a realistic duration on the emergency order—and there is no indication that the five-year period of the California order of protection was set with regard to that provision—was lost here.

We further note that the temporary emergency jurisdiction of the California court extended only to children who were then in California and in need of protection. It is undisputed that the parties’ son left California, and was in New York, the date of the California orders of protection and custody. The California orders were, therefore, invalid as to the parties’ son.

Under the circumstances, including the California court’s agreement, subsequent to the order of protection, that California was exercising only temporary emergency jurisdiction, and that New York is the home state of the children with the authority, inter alia, to make a child custody determination, the Family Court had the jurisdiction to entertain the father’s petition, in effect, for modification of the California order of protection.

Family matters should be entrusted to smart and diligent lawyers like our Nassau County Family lawyers here in Stephen Bilkis and Associates. For a reliable and helpful advice regarding visitation matters, don’t hesitate to contact our Nassau County Child Visitation attorneys now to receive a quality advice.

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