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Father Brings an Order to Show Cause Regarding Visitation


Plaintiff father and defendant mother were married in West Point, NewYork. Five years later, they had a daughter. Six months after the child’s birth, the parties separated. The father commenced an action for divorce in NewYork County, where he had moved after the separation.

The NewYork Supreme Court granted a judgment of divorce, incorporating by reference a comprehensive settlement agreement, the terms of which had been negotiated by mother and father in open court, and which survived the judgment. When the judgment was granted, mother and child were living in Las Vegas, Nevada, where they had moved. A New York Family Lawyer said under the settlement agreement, mother had sole legal custody of the child. Father had visitation rights in accordance with a detailed schedule. The settlement agreement provided that “it is expressly understood and agreed that so long as one of the parties herein is a resident of the State of NewYork, the Supreme Court of the State of NewYork shall retain personal jurisdiction of the parties, of the child, and of the case, for all purposes.”

Subsequently, the mother and child moved to Cheyenne, Wyoming. Later that year, in November, father moved for sole the child’s custody in NewYork, claiming that the mother’s relocations were intended to deprive him from having contact with his daughter. Mother responded by denying father’s allegations, and stating in effect that if the court intended to deny the motion, it should exercise jurisdiction, but if the court was inclined to grant the motion, she should be given an opportunity to file a cross motion seeking to dismiss the action because NewYork was an inconvenient forum.

The parties entered into an agreement extending the father’s visitation rights in exchange for his discontinuing the motion for sole custody and other motions related to the mother’s enrollment of the child in a parochial school.

The father brought an order to show cause seeking to hold the mother in contempt for failing to abide by the visitation schedule. A New York Custody Lawyer said the mother moved for dismissal of the motion, claiming that the child refused to visit her father and forcing her to do so was against her best interests. The court concluded that the mother has removed the child from the jurisdiction and essentially cut off the relationship with the father and the child.

The mother contended that New York has no continuing jurisdiction pursuant to the Parental Kidnaping Prevention Act. According to the mother, a state that has made an initial custody dispute loses subject matter jurisdiction over the case once another state has become the child’s “home State,” which occurs in six months. A Nassau County Family Lawyer said the mother further argues that the significant connection test of Domestic Relations Law § 75-d (1) (b) requires that the child and parents or the child and one contestant have maximum rather than minimum contacts with this state.

The Court awarded the custody to the father in the child’s best interest.

The Court ruled that NewYork was the child’s “home State” because she had lived in NewYork for at least six consecutive months before the commencement of the proceedings with the mother, who resided in NewYork, as did her father. Accordingly, the court is not to engage in an analysis as to whether, under the circumstances, the court should cede jurisdiction to the other state. Such interpretation would essentially encourage “unilateral removals of children undertaken to obtain [favorable] custody and visitation”—the very antithesis of the statutory purpose. The Court opined that “since the child was born here, the parties were married and divorced here, the father has continued to reside here, and the child has visited him here, the substantial connection test is met.” In addition, the court heard testimony from the father and his family at the hearing, showing that substantial evidence exists within NewYork regarding the issue of the child’s future care. Thus, NewYork properly asserted subject matter jurisdiction to determine this custody dispute.

The Court stated that it is undisputed that the father has a significant connection to NewYork. The mother argues that the child has no significant connection to NewYork because she has been living in Wyoming since January 1993. A Queens Family Lawyer said the child’s significant connection to Wyoming, however, does not diminish her significant connection to NewYork as well.

Stephen Bilkis & Associates with its New York Child Custody Lawyers can assist you to continually enforce your rights. It has offices conveniently located throughout New York Metropolitan area.

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