An Italian-born American woman married another American in the United States in August 1992. They went to Italy where their only son was born in July 2001. The child has Italian and American citizenship.
A New York Family Lawyer said the couple divorced in April 2004 in New York but the divorce decree did not rule on the custody or visitation issue because New York was not the home state of their son as he has lived only nine months in New York prior to his parents’ divorce.
The mother returned to Italy with her son to apply with the Italian courts for a determination of the custody and visitation issue. The Italian court awarded the mother sole custody of their son and gave visitation rights to the father. The Italian court went further and allowed the mother to decide whether she wants to reside in Italy or the United States as long as the father is not deprived of his right to visitation.
Six months after the Italian court ordered sole custody to the mother, the father filed an appeal in Italy. A Nassau County Family Lawyer said he wanted joint custody of their son and a modification of the visitation.
Before the appeal in Italy was decided the parents both went back to live separately in New York. On November 2006, a year after coming home from Italy, the mother herself filed an action in the Family Court in New York asking the New York court to modify the award of custody and visitation of the Italian court. The mother also asked the New York Family Court to suspend the visitation rights of the father: she accused the father of abusing their son. The father opposed the action brought by the mother and also asked for a modification of the Italian court. The father asked that he be awarded sole custody of his son.
While the action the mother brought in the Family Court in New York was still pending, the mother took her son and flew to Italy. The father filed a petition against the mother: he decried the violation of the Family Court’s order not to take the child out of the jurisdiction of the Family Court.
The Family Court first dismissed the mother’s allegations of abuse against the husband; the Family Court also stated that New York was the child’s home state and that the mother’s removal of the child from the jurisdiction of the New York court was wrong and it was a violation of the Court’s express order. A Nassau County Child Support Lawyer said the arrest of the mother was ordered; and the father was granted temporary sole physical custody of their child. The father also asked the Court for a custody inquest.
The lawyer for the mother appeared in the Family Court and argued that the mother left New York because she felt that she could not get a fair hearing in New York. She went to the Italian Court of Appeals asking for a declaration that she still has sole custody of her son.
The Family Court, meanwhile, reconsidered the arrest orders it had issued against the mother. It dismissed the husband’s petition for modification of the Italian court’s grant of sole custody to his wife. The Family Court stated that it dismissed the father’s action because it had no jurisdiction over the case and denied the father’s request for a custody inquest.
The father appealed and the only question before the Supreme Court is whether or not the Family Court erred in dismissing the father’s petition.
The Court held that the Family Court had jurisdiction to modify the custody order issued by the Italian court. This is so because at the time that the mother brought the action in New York the child was already residing in New York as his home state. Secondly, the father also filed a counterclaim in the Family Court and the father is a US citizen and a resident of New York.
Just because the mother left the jurisdiction of the Family Court cannot deprive the New York court of jurisdiction that had already vested in it when the mother brought the action in the first place. Here the Family Court erred in dismissing the action for lack of jurisdiction.
New York is the most convenient forum for the custody and visitation issue because it is the court that has optimum access to all the relevant evidence on the custody and visitation issue.
The Court reversed the dismissal of the father’s action and remanded the petition for further proceedings.
Are you like this father? Has your child been spirited away by a spouse who is a national of another state? You want to file a custody action in the United States. You need the advice and assistance of a New York City Family Lawyer. A New York Family attorney can help analyze the facts and give you an opinion as to where best to file the custody action, whether you have a custody issue or need an order for protection. The NYC Family lawyers at Stephen Bilkis and Associates can represent you and argue your case.