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Court Examines Visitation Issue


When the parties entered into their divorce settlement, the petitioner, the respondent and the child resided in Clinton County, New York. Petitioner has continued to reside in New York since the parties separated. Respondent relocated to the State of Connecticut approximately eight years ago. A New York Family Lawyer said that after the relocation, the parties arranged informally for the petitioner to visit with the child for an extended period in New York over the summer and during some of the child’s spring, winter Christmas school vacations. In July of 2008, respondent informed petitioner that if he wanted to exercise any visitation with the subject child he would have to come to Connecticut. The only explanation respondent gave petitioner for her new position was that the subject child has an attitude when she comes home and that petitioner and his family are a bad influence.

Petitioner filed a Petition seeking the modification of the parties’ New York State Judgment of Divorce dated February 25, 1999, regarding petitioner’s visitation with the parties’ child. The respondent filed a Notice of Motion seeking the dismissal of petitioner’s petition arguing that the State of New York (where the petitioner resides) lacks exclusive, continuing jurisdiction over custody proceedings concerning this child. In the alternative, respondent requests that this Court decline jurisdiction in favor of Connecticut (where she and the child reside).

Respondent alleged that in the eight years that he and the child have resided in Connecticut, petitioner’s visitation has been sporadic, averaging approximately three weeks in the summer with an additional week during the year over the last three years. In at least two of the years since the child moved to Connecticut, the visitation has been a total of less than one week. A New York Criminal Lawyer said the overwhelming evidence concerning the child’s care, protection, training and personal relationships is in the State of Connecticut and that it would be very inconvenient for the child and respondent to litigate the matter in New York.

A Queens Family Lawyer said the Court ruled that New York Court has exclusive, continuing jurisdiction to determine this modification application of the case pursuant to Article 5-A of the Domestic Relations Law (DRL), titled the Uniform Child Custody Jurisdiction and Enforcement Act [UCCJEA]. The law states that DRL §76-a controls when New York retains exclusive, continuing jurisdiction over New York orders, and provides as follows:

“… a court of this state which has made a child custody determination … has exclusive, continuing jurisdiction over the determination until:

(a) a court of this state determines that neither the child, the child and one parent, nor the child and a person acting as a 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; or

(b) a court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state …”

On the facts of this case, New York has exclusive, continuing jurisdiction unless a New York Court determines that New York no longer has jurisdiction pursuant to DRL §76-a(1)(a).

Based upon the information presented, it appears most, if not all, of the visitation between petitioner and the subject child took place in New York. A Nassau County Family Lawyer said the subject child has extended family in New York. Basically, pertinent information regarding the child’s best interest and safety during visitation with petitioner exists in New York. The Court concludes that petitioner still resides in New York and substantial evidence remains available in New York concerning the child’s care, protection and personal relationships during visitation. Therefore, New York has exclusive, continuing jurisdiction.

The Court found that the most pertinent information regarding the child’s best interest and safety during visitation with petitioner exists in New York. Thus, the Court did not find that New York is an inconvenient forum and declined respondent’s motion seeking to have this Court decline jurisdiction.

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