A New York Family Lawyer said this is a matrimonial action where plaintiff, the wife, appeals from an order of the Supreme Court, Nassau County, dated 10 November 1982, which granted defendant husband’s motion to modify the visitation provisions of a judgment of divorce to eliminate plaintiff’s visitation with the parties’ son to the extent of reducing her visitation rights and denied plaintiff’s cross motion to vacate the defendant’s motion. The order appealed from allows the plaintiff to visit with her son after submission to the court of proposed visitation dates and only with strict supervision. The appellate court affirms the said order, with costs, and states its reasons as follows:
First, plaintiff should be allowed visitation with the child. The Special Term’s finding that plaintiff’s exercise of her right of visitation with her son is not detrimental to the welfare of the child is actually supported by the record. Thus, it is proper to deny the defendant’s motion insofar as it sought to eliminate all visitation rights
Second, a New York Divorce Lawyer said the Special Term’s finding that plaintiff’s visitation rights must be exercised in New York under supervised conditions since plaintiff had previously fled the jurisdiction with the marital issue and had disregarded prior judicial decrees is also correct. Plaintiff’s past history amply supports the conclusion that plaintiff will likely abscond with the child if permitted unfettered access. Based on the protracted record and extensive litigation here, a further hearing on this issue is unnecessary, as held in the landmark cases of McKinley v. McKinley and Heely v. Heely.
Third, plaintiff’s contention that Special Term should have declined to exercise its jurisdiction to modify the judgment of divorce is unmeritorious. Here, the subject child lived in New York until he was wrongfully taken to Arizona sometime in June of 1979 and he remained there until October of 1981 at which time he returned to New York to reside with the defendant. Clearly, New York is the child’s “home state” under the Uniform Child Custody Jurisdiction Act (Domestic Relations Law, § 75-c, subd. 5) and Special Term was empowered to make a custody determination pursuant to Domestic Relations Law, § 75-d, subd. 1, par. [a], cl. [i].
Fourth, a Westchester County Family Lawyer said the plaintiff’s claim that New York should have declined jurisdiction over the proceeding because Arizona had retained jurisdiction over the controversy and New York was an inconvenient forum is without merit. Here, while it is true that several actions were initiated in Arizona before the motions were made, Arizona courts did not state its willingness to exercise jurisdiction in any of those actions. In fact, based on the record, the Arizona Court of Appeals ruled that “the Supreme Court in and for the County of Nassau, State of New York, is a more appropriate forum for determination of the merits of the petitioner’s [plaintiff herein] petition to modify custody”. Clearly, the provisions of section 75-g of the Domestic Relations Law requiring a New York court to defer adjudicating a dispute when a foreign court is exercising jurisdiction substantially in conformity with the Uniform Child Custody Jurisdiction Act is not applicable. This was the ruling in the celebrated case of Vanneck v. Vanneck. The doctrine of forum non conveniens as codified in section 75-h of the Domestic Relations Law is also not applicable. Although plaintiff and her child’s two other sisters continue to reside in Arizona, New York is his home state. New York has a “closer connection” with the subject child and his father. Substantial evidence concerning the child’s “present or future care, protection, training and personal relationships” is available in New York (Domestic Relations Law, § 75-h, subd. 3, pars. [a], [b], [c] ).
Fifth, a Suffolk County Family Lawyer said plaintiff’s other contentions also lack merit.
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