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Court Lacks Jurisiction to Modify Custody


A New York Custody Lawyer said that on 26 June 1983, the parties married in Rhode Island, later moved to that state, where a son was born on 13 August 1990. On 1 July 1994, the parties were divorced in Rhode Island after a contested trial in that state’s Family Court, which awarded the parties joint custody of the child with physical custody awarded to the mother, who was given responsibility for all decisions concerning the child’s education and religious upbringing. All other decisions concerning the child were to be jointly decided by the parties. The court awarded extensive visitation to the father, an attorney, who was directed to pay child support of $1,500 per month. In pertinent part, the judgment of divorce states: “The State of Rhode Island shall retain jurisdiction and is declared to be the home state as to any decisions concerning custody and visitation in accordance with the provisions of the Rhode Island Uniform Child Custody Jurisdiction Act.”

From his birth until the fall of 1994, the child resided in Providence, Rhode Island. After the parties’ separation in 1992, the child had frequent and extensive contact with his father during the week and on alternate weekends. On 10 November 1994, after a hearing, the Rhode Island Family Court entered an order permitting the mother to relocate to New York on condition that the father have extensive visitation in Rhode Island, including, inter alia, three weekends every month. The order required the mother to deliver the child and pick him up from Providence on two weekends and New Haven, Connecticut on the other weekend and to bear the cost thereof. A New York Family Lawyer said the order further provided, “The State of Rhode Island shall retain jurisdiction and is declared to be the home state as to any decision concerning custody, visitation and child support, and shall be in accordance with provisions of the Rhode Island Uniform Child Custody Jurisdiction Act, General Laws of Rhode Island, 1956, as amended 15-14-1 through 26.” The parties substantially adhered to these provisions from November 1994 to the present.

On 12 September 2003, the mother commenced the instant proceeding in Supreme Court, New York County for an order “a) modifying the extraordinary visitation schedule entered almost nine years ago; and b) modifying and enforcing the child support provisions established pursuant to the parties’ divorce over nine years ago.”

The mother asserted that the nine-year-old visitation schedule was becoming “more socially, developmentally and educationally onerous” for the child, who wanted to spend more time with his friends. According to the mother, the child would return home exhausted from these weekend trips, which also interfered with his working on school projects with his classmates and prevented him from participating in practice sessions for high school entrance examinations. A Nassau County Family Lawyer said the mother also attacked the original child support order as vague, outdated and in contravention of public policy and in violation of child support standards. The petition does not disclose the income of the mother, also an attorney, and does not set forth specific facts showing a change of circumstances.

The Supreme Court of New York held that Rhode Island no longer had jurisdiction to determine the custody/visitation issue since New York was the child’s home state for at least six consecutive months before the commencement of the instant proceeding. Supreme Court determined, without referring to any specific Rhode Island statute or Rhode Island decisional authority, that the recently enacted Rhode Island Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) prohibits Rhode Island from entertaining a petition to modify its pre-UCCJEA determination because Rhode Island is no longer the child’s home state. The court also set the matter down for a hearing on the requested modification of the Rhode Island order of visitation.

Hence, the herein appeal.

Does the Supreme Court of New York have subject matter jurisdiction?

The question of jurisdiction to resolve the issues raised by this proceeding is governed by the provisions of UCCJEA, an updated and enhanced version of the Uniform Child Custody Jurisdiction Act (UCCJA), which represents an attempt by the National Conference of Commissioners on Uniform State Laws to promote uniformity concerning child custody and visitation as to children who move from one state to another and to bring those laws into conformity with federal law, including the Parental Kidnaping Prevention Act (PKPA). On 17 July 2003, Rhode Island adopted UCCJEA, which repealed and superseded UCCJA. Similarly, in April 2002, New York had earlier enacted UCCJEA, with minor modifications, as Domestic Relations Law article 5-A, which repealed UCCJA.

Rhode Island’s UCCJEA, but not New York’s, contains a specific transitional provision, General Laws, which requires enforcement of the law in effect at the time “the motion or other request for relief was made.” A Queens Family Lawyer said Rhode Island’s UCCJEA, like New York’s, introduces the concept of “exclusive, continuing jurisdiction,” but limits the concept to only child custody determinations consistent with the Rhode Island General Laws.

Under Rhode Island law, a New York court may divest Rhode Island of exclusive, continuing jurisdiction in this matter only if the New York court determines that the child and the child’s parents do not presently reside in Rhode Island. Since the father remains a Rhode Island resident, no such determination can be made.

New York lacks subject matter jurisdiction to determine the subject custody/visitation issue despite the fact that the child is now and has been for the past nine years a resident of New York.

Given the father’s residency in Rhode Island, the prerequisites for jurisdiction to hear this matter in New York could not be clearer: Rhode Island must first decline jurisdiction since a court of this state may not modify a child custody determination made by a court of another state unless the court of the other state determines it no longer has exclusive, continuing jurisdiction or that a court of this state would be a more convenient forum. Where a different state possesses exclusive, continuing jurisdiction, New York cannot take jurisdiction unless the foreign state declines, even though the parties clearly no longer have a significant connection with that state. There is no recourse when a recalcitrant state refuses to yield. The modification state is not authorized to determine that the original decree state has lost its jurisdiction.

It is equally clear that it is for the Rhode Island court, not a New York court, to decide the issue of whether Rhode Island has “exclusive, continuing jurisdiction” since it is a condition to New York’s exercise of jurisdiction to modify a child custody determination made by a court of another state that the court of the other state determines it no longer has exclusive, continuing jurisdiction.

Furthermore, Rhode Island’s UCCJEA makes continuing jurisdiction of custody decrees exclusive until a Rhode Island court determines that neither the child nor the parents nor any person acting as a parent has a significant connection with Rhode Island and that substantial evidence is no longer available in Rhode Island concerning the child’s care, protection, training, and personal relationships. The use of the phrase “a court of this state” in makes it clear that Rhode Island is the sole determinant of whether jurisdiction continues and a party seeking to modify a custody determination must obtain an order therefrom declaring jurisdiction.

Even in the absence of the provision in the Rhode Island custody order expressly retaining jurisdiction as to any subsequent decisions concerning custody, visitation and child support, t]e majority of courts that have considered the issue of continuing jurisdiction have held that the state in which the initial decree was entered has exclusive continuing jurisdiction to modify the initial decree if: (1) one of the parents continues to reside in the decree state; and (2) the child continues to have some connection with the decree state, such as visitation.

It must be noted that at the time of the initial child custody determination in 1994, Rhode Island was the child’s “home state,” as defined under both UCCJA and UCCJEA. Not only was that determination “consistent with” UCCJEA’s requirements, but it also reflected the same determination to exercise jurisdiction as would be required under UCCJEA. Thus, under the facts presented, absent a Rhode Island court’s declination of jurisdiction under Rhode Island General Laws, Rhode Island has “exclusive, continuing jurisdiction.”

Moreover, the mother’s cited case offers no support for the proposition that a New York court can decide whether a Rhode Island court has exclusive continuing jurisdiction. While the cited case held that Connecticut would have exclusive, continuing jurisdiction to modify its prior child custody decree only if Connecticut’s version of UCCJEA was in effect when the original custody determination was made, the decision turned on a provision in the Connecticut UCCJEA — the prepositional phrase “pursuant to” — that is not contained in the Rhode Island statute. The Rhode Island statute and the UCCJEA itself use the prepositional phrase “consistent with.” The term “pursuant to” in the Connecticut statute limiting exclusive, continuing jurisdiction to determinations made “pursuant to” another referenced statute is a “restrictive term”, meaning that the referenced statute must be the “legal mechanism” under which the determination was made. On the other hand, “consistent with” means only that the prior custody determination must have been “in harmony with” or “in general agreement” with the UCCJEA.

What’s more, the proposition that a custody determination made under UCCJA is not “consistent with” UCCJEA leads to an absurd result. Since UCCJEA is merely a “revised” version of UCCJA, the drafters could not have intended that courts deciding cases under the former statute would, under the latter, lose “exclusive, continuing jurisdiction” of all such cases.

Significantly, the mother is unable to offer any explanation as why UCCJEA would refuse to confer “exclusive, continuing jurisdiction” because the court’s original exercise of jurisdiction to make the child custody determination was under UCCJA, when the same exercise of jurisdiction would have occurred if UCCJEA had been in effect. After all, under both UCCJA and UCCJEA, Rhode Island was the child’s “home state.”

In addition, because, under Rhode Island law, Rhode Island has exclusive, continuing jurisdiction, Supreme Court’s assertion of jurisdiction violated PKPA, which preempts state law. Under the law “A court of a State may not modify a visitation determination made by a court of another State unless the court of the other State no longer has jurisdiction to modify such determination or has declined to exercise jurisdiction to modify such determination”. UCCJEA’s continuing jurisdiction provisions are narrower than the comparable provisions of PKPA, which authorizes continuing jurisdiction as long as the original decree state remains the residence of any “contestant” and that state continues to retain jurisdiction under its own law. It also noted that under the PKPA a court of a state may not modify a custody determination made by another state unless, inter alia, the court of the other state no longer has or has declined to exercise jurisdiction. New York courts have consistently rejected the mother’s argument that PKPA applies only to kidnapping. PKPA contains no such condition to its application.

Lastly, Supreme Court erred in exercising jurisdiction over the 1994 Rhode Island judgment of divorce as it relates to child support, which, in light of the State’s adoption of the Uniform Interstate Family Support Act (UIFSA), is prohibited by the exclusive, continuing jurisdiction of the Rhode Island court. UIFSA requires recognition of Rhode Island’s exclusive, continuing jurisdiction with respect to child support under the 1994 judgment, given the father’s continuing residence there and the absence of the consent of the parties to a change.

The mother’s other arguments are without merit.

Accordingly, the Supreme Court order granting petitioner mother’s application to modify a Rhode Island custody and visitation order as well as part of a judgment of divorce pertaining to child support is reversed; the petition is denied. Respondent father’s cross motion to dismiss the petition for lack of subject matter jurisdiction and for summary judgment is granted.

Child custody, visitation, support are some of the things included to be decided by the court when a divorce is at issue. What’s more, if the parents no longer reside in the same state, which court has jurisdiction could also be at issue just like the abovementioned case. To learn more of the legal remedies available in these types of situations, contact Stephen Bilkis & Associates and consult with our NY Child Support Lawyers or our NY Divorce Lawyers.

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