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Father Seeks Full Custody of Children


This is a contested matrimonial action before the Supreme Court of the State of New York.

On 6 January 2010, the plaintiff, the husband moved by order to show cause and prayed for an order directing the return of their two children, A, age 7, and M, age 4, to New York State, for an order awarding the him temporary custody of their children, and for an order awarding the defendant, the wife, reasonable visitation with the minor children within the State of New York.

On 9 April 2010, the wife opposed the husband’s application and cross moved by order to show cause and prayed for an order dismissing the husband’s application on the basis that New York is not the home state pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and for permission for her to commence a custody proceeding in California, and for an order directing her husband to pay all costs associated with Court appearances, including but not limited to, transportation costs including airfare, car rentals, hotel costs, and daycare.

On 10 June 2010, in opposition to the wife’s cross motion, the husband moved by order to show cause and prayed for an order directing his wife to immediately return the children at the conclusion of the 2010 school year, for an order directing that the minor children reside with him pending the jurisdictional decision of the New York Court, and for an order requesting that the Superior Court of the State of California vacate any and all orders issued and to stay all proceedings now pending in California and to defer issues of support, custody and parental access to the New York Court.

The Supreme Court of New York now has before it these applications representing the second request for relief brought by the husband.

On 17 July 2009, the husband filed two separate petitions before the New York State Family Court Kings County requesting the immediate return of his children to New York. However, those petitions were later on withdrawn, without prejudice, by the husband prior to disposition, and alleged that the petitions were withdrawn on his mistaken belief that he and his wife, the parties, could resolve their differences without court intervention.

On 29 December 2009, this matrimonial action was commenced by the husband. Both the summons for divorce and the husband’s first order to show cause requested that their children be returned to New York.

On 19 January 2010, the wife appeared pro se in the New York action and the preliminary conference and the order to show cause were adjourned to 25 February 2010. On the adjourn date, the wife retained counsel and appeared by counsel.

On 25 February 2010, the preliminary conference order was issued which stated that the issues of custody, parental access, child and spousal support, equitable distribution, and the issue of jurisdiction to determine custody were unresolved. Simultaneously, a separate temporary order was issued, on the consent of both parties, which directed that the husband provide interim child support and for him to continue to pay the children’s private school tuition, that the husband pay the lease payments on the Lexus automobile and for the wife to remain responsible for the insurance, registration and operating expenses of the Lexus, that the children would remain with the wife in California, that the husband would have temporary access to the children in California, and that he be permitted access time in New York at times and under conditions to be mutually agreed upon. It was agreed that the husband would be provided daily phone access, and the wife was to withdraw without prejudice a pro se support proceeding she had filed in California. The order was without prejudice to the respective jurisdictional claims of the parties.

On 8 April 2010, the Court issued an order directing that monies be placed in escrow to cover the costs of both an Attorney for the Children and a forensic expert. On 12 April 2010, the Court appointed a counsel to represent the children.

On 22 April 2010, although represented by counsel in New York, the wife appeared pro se and filed an ex parte application in California requesting for emergency relief. Her order to show cause was heard and as a result of that application, the California Court granted the wife a temporary order of sole legal and physical custody of the subject children.

Upon receipt of that order, the New York court communicated with the California court as required by the rules and forwarded copies of all orders issued by it, reported back to the parties and counsel the substance of those communications, and provided access to counsel of the confirming e-mails. On 15 June 2010, in recognition of the New York Court’s priority to determine which state is the “home state,” the California court issued an order deferring the case to the California court.

On 25 May 2010, this Court, the New York Court, issued an order setting the hearing to resolve the issue of jurisdiction on 3 August 2010.

On 6 July 2010, in partial response to the husband’s 10 June 2010 order to show cause, the Court grated him interim relief which by its terms continued all interim orders and granted him additional parental access time in California with leave to enforce the order in a court of competent jurisdiction in California. However, the husband did not exercise his right to visitation in California. Thus, the children were produced by the wife in New York, as directed, to meet with their lawyer prior to the scheduled hearing and thereafter to spend time with the husband, the children’s father.

On 3 August 2010, during hearing, the wife appeared pro se, the husband was represented by counsel and the children were represented by their attorney. Both parties testified on their own behalf and no other witnesses were called. After testimonies were heard, the hearing was adjourned for the submission of closing statements. All parties submitted statements in support of their respective positions.

After having had the opportunity to assess and weigh the demeanor and credibility of the witnesses and the evidence submitted in support of the respective positions of the parties, the Court found that many of the essential facts are not in dispute. Its findings of fact are as follows:

The husband is a self- employed dentist licensed to practice dentistry in both New York and California while the wife is a former medical resident now engaged as a research assistant at UCLA.

Since 16 January 1999, the parties have been married and have resided in New York even prior to their marriage. The two subject children were born in New York and resided there exclusively since their births – in 2003 for A and 2006 for M. Until July 2009, the children attended daycare and private nursery schools in Brooklyn, New York and any child care providers were New York residents. Medical care was received in New York as well. While in Brooklyn, the family resided in an apartment owned and furnished by the maternal grandmother.

Both parties, the husband and the wife have extended family living in California, and they reside in close driving proximity. Both sets of grandparents and the husband’s two sisters live in driving distance to the wife’s apartment in California. One of the paternal aunts visits the children and has at times brought them to visit their paternal grandparents. The maternal grandparents assist in providing child care for the children. The children sleep over at their grandparents’ home once a week and are taken to school by them the following day. While the maternal grandmother owns properties in New York, the parties do not have any close family living in Brooklyn or elsewhere in New York City.

Later on, the parties agreed to relocate to California. This move was suggested by the wife’s mother, and to assist the wife in obtaining employment. The husband agreed to and participated in the plans to relocate which was assumed by him to be their mutual decision. According to the husband, the move reflected an economic decision to assist his wife’s efforts to find employment since she had been out of work for approximately two years – that this move was for her to apply to another residency program so she might complete her medical training.

On 7 July 2009, the wife and children left New York and moved into an apartment in Sherman Oaks, California for which the husband signed the lease. The children were enrolled and attended private schools in California for which the husband paid in full and the Lexus automobile was shipped to California to be used by the family upon their arrival. The husband remained in New York after the wife and children moved in order to earn additional income prior to joining his family.

Approximately two weeks later and prior to the husband leaving New York, the wife advised him that she had found someone else and did not want him to relocate to California in order to live with her and the children, and that she wanted a divorce. Despite how hard this was for him, the husband still wanted to reconcile with his wife. Thus, he still left New York and traveled to California and stayed at his parents’ home. For approximately six weeks, the husband tried to look for employment but was unable to do so. Thus, he returned to New York.

Upon the husband’s return to New York, he vacated their former marital residence and returned the furniture therein to his mother-in-law as it belonged to her. He has since been sued for alleged arrears in unpaid rent. Monies that had been placed in their joint bank accounts in New York had also been removed by the wife in anticipation of her move to California.

Clearly, while the husband concurred in the decision to move the family to California, the wife’s undeclared intention was to separate from her husband and remain in California with the children.

Since July 2009, the children with their mother and her boyfriend, “R” have lived in an apartment in California. The children share their own room, use the family computer transported to California by the wife, and have each attended school and/or day care in California since they left New York. The husband consented to the children remaining in California during the last school year.

The Court’s decision:

Under the law, DRL §76(1)(b), New York has jurisdiction to make an initial custody determination if New York is the home state of the children at the time of the commencement of the proceeding or was the home state within six months prior to the commencement of the action. The ability to obtain jurisdiction and the propriety of exercising jurisdiction are two separate issues. The Court must make two determinations: first, that jurisdiction lies under DRL §76, and second, that succeeding provisions do not preclude jurisdiction or do not mandate a declination of jurisdiction in favor of another state.

As discussed, the subject children have lived with both parents in New York for at least six consecutive months immediately prior to the commencement of the instant action. The divorce action was commenced on 29 December 2009 with the purchase of an index number and the filing of a request for judicial intervention. Although the divorce action was timely commenced, it must be noted that the husband had also timely filed writs of habeas corpus and custody petitions in the Family Court Kings County within a few weeks of the children’s relocation to California.

Clearly, the New York Court has jurisdiction to determine custody as it is the home state of the children. However, under the circumstances, the Court must now address the California proceeding. The pendency of a proceeding in another jurisdiction does not mandate or justify dismissal, but rather the Court must determine on the record that the foreign state is exercising jurisdiction in substantial conformity with UCCJEA, and that it is also mandated to communicate with the California court prior to determining which state’s proceeding should take precedence.

After complying with the provisions of the relevant sections, the Court has determined that California has adopted the UCCJEA and that the statutory framework in California and New York are substantially the same. While the communications between the courts need not be on the record, all parties have requested that they be permitted to review all e-mails exchanged between the courts. That application was granted.

Going now to the gist of the case, the wife filed an application for custody in California on 15 April 2010, approximately four months after the New York action was commenced. The California petition did not specify that there was a custody proceeding pending in New York, only that the husband was making attempts to return the children to New York. In response to the wife’s California application, the court exercised “temporary emergency jurisdiction” and awarded the wife temporary sole custody pursuant to California Family Code 3424 as stated in its order dated 22 April 2010. In deferring to the New York Court to determine jurisdiction, the California court stated in its order dated 15 June 2010 that the determination was without prejudice to the wife’s presentation of any evidence on the issue of jurisdiction or on whether California was a more convenient forum.

In order for the Court to determine if New York is an inconvenient forum, it must address the delineated factors set forth in DRL §76-f.

Here, the court found that there are no child protective issues and no domestic violence. The children have resided in California for one year on the consent of the husband. Although his initial consent was not an informed consent, the husband later agreed that the children should continue their school year in California without disruption, and he withdrew without prejudice his application for a writ of habeas corpus which if heard would have addressed the children’s removal from the jurisdiction prior to their attendance in school and possible acclimation to their new home.

The court also noted the distances between the two courts, New York and California jurisdiction, as measured by MAPQUEST, is 2, 787 miles.

The Court also considered the parties’ relative financial circumstances. While neither party submitted their complete financial information, there were other factors. While both parties were employed, the husband testified that he understood that it was less costly for one party to travel to California than for three to travel to New York. Also, the husband’s compliance with the Court directives for payment of legal fees for his children had not been consistent.

It is important to note that neither party agreed to which state should have jurisdiction. While the husband agreed to the children’s move, he was unaware that his wife did not want him to move with them; while he continued to assert that New York had jurisdiction to determine custody, he withdrew his Family Court writs and consented to the children remaining in California during the school year.

While one year may sound like an insignificant period of time, it actually isn’t in the lives of the very young subject children. The most important factor to note here is that all current and relevant information is now in California. If the New York Court takes jurisdiction, the children would need to be interviewed and observed by the court appointed forensic evaluator and would need to appear for an in camera hearing. This disruption in the lives of the children is simply unjustifiable and burdensome.

Indeed, each court has the ability to decide the issues expeditiously. However, considering the circumstances of the case, children involved, California Court is the more convenient forum to determine the issue of custody. Besides, New York Court was assured that the statutory scheme in California provides all the procedures necessary to present evidence on the issue of custody.

However, New York Court still retains jurisdiction over the divorce. Certainly, New York has jurisdiction to address all the remaining ancillary issues in the matrimonial action and the wife will have to address those issues before it by complying with court ordered discovery, appearing for compliance and pre-trial conferences and, if not resolved, appearing for trial at such dates and times as the Court sets.

Consequently, after the children’s visit with the husband in New York, they were returned with the wife to California to commence school. The pendente lite order of support was ordered to remain in effect pending conclusion of the parenting issues. All remaining issues concerning the children (custody and parental access) were then set to be heard before the Superior Court of California, County of Los Angeles, Los Angeles, California.

Custody, visitation or parental rights, more often than not, are the hardest issues a court must resolve in every divorce case. If you ever find yourself knotted in a similar situation, please do contact Stephen Bilkis & Associates for a free consult.

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