A New York Family Lawyer said that, based upon the foregoing papers, defendant (Father) moves for a suspension and downward modification of his child support obligations on the ground that plaintiff (Mother) allegedly has refused his visitation with the parties’ daughter, has removed the child to another jurisdiction without court approval or notice to Father and has failed to provide him with an address, telephone number or e-mail address for the child. He further moves for an order directing a change of custody and/or immediate visitation with the child.
A New York Child Custody Lawyer said that, the mother cross-moves for dismissal of Father’s application on the grounds that: (1) the court lacks subject matter jurisdiction to resolve the instant motion, pursuant to Domestic Relations Law § 76-a (1) (b), since neither the parties nor the child resided within the state of New York on the filing date of the subject application or six months prior to same; and (2) the court lacks subject matter jurisdiction because the child and her mother, the plaintiff, had no significant connection with the State of New York on the filing date of the instant application and for six months prior to such filing, and, in addition, substantial evidence is no longer available in the State of New York concerning the child’s care, protection, training and personal relationships. Plaintiff also moves, alternatively, for an order whereby the court declines jurisdiction over the instant custody/visitation dispute on the ground that New York is an inconvenient forum and a declaration that the province of Ontario, Canada is the appropriate forum to exercise jurisdiction over the controversy between the parties. The parties were divorced pursuant to a judgment of divorce which was granted upon Father’s default on May 10, 2006.
A Nassau County Family Lawyer said that, in support of his instant motion, Father submits an affidavit wherein he states the following, in relevant part, concerning the background of the subject custody/visitation dispute between the parties and the current custody/residential arrangements for the child. In support of her cross motion, Mother states that the subject judgment of divorce was obtained upon the default of Father. He was served by Mother with all divorce documents in Santa Clara, California, after he was located there by private investigators retained by Mother. He commenced his own action for divorce against Mother on June 27, 2005, but thereafter did not prosecute such action. A Kings Divorce Lawyer said that, in further support of his motion and in opposition to Mother’s cross motion, Father submits an affidavit.
A Nassau County Child Custody Lawyer said the issue in this case is whether defendant’s motion suspension and downward modification of his child support obligations on the ground that plaintiff allegedly has refused his visitation with the parties’ daughter, has removed the child to another jurisdiction without court approval or notice to Father and has failed to provide him with an address, telephone and his motion for an order directing a change of custody and/or immediate visitation with the child.
The court finds, on the record before it, that it does not have subject matter jurisdiction to adjudicate the instant child custody dispute. Pursuant to statute, a court of this state which has made an initial child custody determination consistent with Domestic Relations Law § 76 has exclusive continuing jurisdiction over said determination until ” a court of this state determines that neither the child, the child and one parent, nor the child and a person acting as parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships”. Moreover, “a court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section seventy-six of this title” (DRL § 76-a ). Section 76 (1) (a) provides the following requisites concerning the exercise of jurisdiction by the court with respect to initial custody determinations:
1. Except as otherwise provided in section seventy-six-c of this title concerning temporary emergency child custody jurisdiction, a court of this state has jurisdiction to make an initial child custody determination only if: (a) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as parent continues to live in this state; (b) a court of another state does not have jurisdiction under paragraph (a) of this subdivision, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under seventy-six-f or seventy-six-g of this title, and; (I) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and (ii) substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships; (c) all courts having jurisdiction under paragraph (a) or (b) of this subdivision have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section seventy-six-f or seventy-six g of this title; or (d) no court of any other state would have jurisdiction under the criteria specified in paragraph (a), (b) or (c) of this subdivision. 2. Subdivision one of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state. 3. Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination
In any event, a court which has obtained either initial or continuing jurisdiction pursuant to this statutory framework may decline to exercise same if it determines that New York is an inconvenient forum for the adjudication of the subject custody dispute. In so deciding, the court is required to consider all relevant factors, including the following: (a) whether domestic violence or mistreatment or abuse of a child or sibling has occurred and is likely to continue in the future and which state could best protect the parties and the child; (b) the length of time the child has resided outside this state; (c) the distance between the court in this state and the court in the state that would assume jurisdiction; (d) the relative financial circumstances of the parties; (e) any agreement of the parties as to which state should assume jurisdiction; (f) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child; (g) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and the familiarity of the court of each state with the facts and issues in the pending litigation.
Based upon the relevant statutory factors, the court finds that it does not have subject matter jurisdiction over the instant custody dispute. It is undisputed that the parties’ child relocated to Ontario, Canada with Mother in July 2006. Father did not move this court for visitation or custody until March 16, 2009. In the interim, the parties’ daughter has completed three grades in primary school in Canada and Mother has remarried and had another child. The parties’ daughter currently resides with Mother, her step-father and younger brother in Canada. At the time of the subject relocation to Canada by Mother, there was no visitation or custody proceeding pending and Father had not obtained an order from the court with respect to same. Indeed, the only custody adjudication in effect at that time was the judgment of divorce which provided that Mother had sole custody of the parties’ child and established Father’s child support obligation.
The only evidence proffered by Father concerning the connection of the parties’ child and Mother to New York is the presence within the state of several maternal relatives, as well as a physician who at one time acted as the child’s pediatrician. Accordingly, in applying section 76-a (1) (a) to the case at bar, the court finds that “neither the child, the child and one parent, nor the child and a person acting as parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships.”
The court does, however, retain jurisdiction over that portion of Father’s motion seeking a downward modification of his child support obligations. Pursuant to Family Court Act § 580-205 (a) (1) and (2), “a tribunal issuing a support order consistent with the law of this state has continuing, exclusive jurisdiction over a child support order as long as this state remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued.”. In the instant case, the court finds that New York is the current residence of Father, the obligor under the child support provision of the subject divorce judgment, based upon his 2008 tax return filing and his representations that his presence in California was only temporary and for the purpose of obtaining employment after his New York employment ceased. Accordingly, pursuant to section 580-205 (a) (1), the court retains jurisdiction to consider Father’s application for a downward modification of his child support payments.
The court declines, on the record before it, to grant Father’s motion for downward modification. “Although a parent’s loss of employment may constitute a change of circumstances warranting a downward modification where he or she has diligently sought re-employment, the proper amount of support payable is determined not by a parent’s current economic situation, but by a parent’s assets and earning power”. Father has produced income tax returns which demonstrate that his income declined approximately 50% from 2007 to 2008. However, he has failed to produce any information concerning his assets. Most importantly, he has stated, in wholly conclusory terms, that he has attempted to secure work commensurate with his skills and past earnings with several entities, but fails to describe whether open positions actually existed at such entities, the methods utilized in his job search or if he was offered any position with the companies identified. Accordingly, given the relatively recent nature of Father’s current economic difficulties, as well as his considerable earning potential, the court is not satisfied that Father lacks the assets or ability, at this time, to comply with his child support obligations. As a result, the court declines to grant the downward modification he seeks as part of his instant motion.
A court has the authority to suspend a noncustodial parent’s obligation to pay child support and/or maintenance when it finds that the custodial parent has deliberately frustrated or actively interfered with the noncustodial parent’s visitation rights. In the instant case, however, the judgment of divorce did not provide for visitation by Father and Father subsequently failed to obtain an order of visitation from Family Court or Supreme Court; indeed, at least two Family Court custody/visitation proceedings commenced by him were dismissed during the time period from 2005 to 2008. Although Mother relocated to Canada with the parties’ daughter in 2006, there was no court order directing her to remain in New York for purposes of Father’s visitation, or otherwise, or to notify Father of her relocation. Moreover, to the extent Father Claims that Mother and members of her family have attempted to alienate the parties’ child from him, such allegations are conclusory and unsupported based upon the current record before the court.
As a result, that portion of Father’s motion seeking custody and/or visitation is denied, pursuant to DRL § 76-a (1) (a), for lack of subject matter jurisdiction. In addition, that portion of Father’s motion seeking a downward modification of his child support obligations is also denied.
If you have issues concerning child support, seek the modification of the amount of support. Ask for the help of a Kings Child Support Attorney and Kings Family Attorney to assists you. Call us at Stephen Bilkis and Associates.