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Court Decides Jursidiction Issue


Petitioner mother and respondent father were married in Colorado in 1979. They had a child born in Wyoming. Thereafter the mother filed for divorce in Wyoming. A New York Family Lawyer said at about that time, the mother moved with the child to New York, where they have resided since. During the divorce action, the parties entered into an agreement resolving the issues of child custody, visitation, and support.

The mother was granted custody of the child in New York and the father was awarded liberal visitation, including extended summer visitation with the child in Wyoming. A Nassau County Family Lawyer said that settlement agreement was incorporated into the divorce decree rendered by the Wyoming District Court. In 1991, the father brought an application in Wyoming to enforce his visitation rights and prevent the mother from interfering with visitation. The parties reached a stipulation. The Wyoming District Court issued an amended divorce decree incorporating the terms of that stipulation.

The mother petitioned Chautauqua County Family Court for an order modifying visitation.

Eventually, however, the parties entered into a written stipulation of settlement, which subsequently was incorporated into an order of Family Court.

Subsequently, the father applied in Wyoming District Court for modification of child support. Thereafter the father filed an amended application in Wyoming District Court, seeking to modify and/or enforce the visitation provisions of the Wyoming amended divorce decree (even though that decree had been modified by two subsequent NewYork orders entered on consent).

Following the parties’ voluntary resolution of the support issues, the primary issue in both proceedings remained whether NewYork or Wyoming should exercise jurisdiction over the visitation dispute.

The Wyoming District Court ruled that it has continuing exclusive jurisdiction. The Wyoming District Court determined the father’s amended application to modify or enforce his visitation rights. The Wyoming Supreme Court reversed the order of the District Court, holding that NewYork was child’s home state and observing that, although Wyoming had continuing jurisdiction, the case was one of concurrent jurisdiction between Wyoming and NewYork.

The New York Supreme Court held that the Wyoming court should have deferred to NewYork’s exercise of jurisdiction rather than entertain the proceeding subsequently commenced there.

Accordingly, the New York Supreme court ruled that NewYork unquestionably is the child’s “home state,” meaning the State in which he has lived with a parent for at least six consecutive months preceding the commencement of the instant proceeding (and the parallel Wyoming proceeding) for modification of visitation.

The Court held that analysis under the Parental Kidnaping Prevention Act (PKPA) nevertheless would support NewYork’s exercise of jurisdiction over this dispute. The PKPA analysis looks first to the provisions of the PKPA itself and then to the jurisdictional provisions of State law. The PKPA provides that a State court determination is consistent with the PKPA only if the court continues to have jurisdiction under State law and if a specified condition of the PKPA is met. The Court ruled that the applicable PKPA conditions are: that the forum is the home state of the child on the date of commencement of the proceeding (only NewYork meets that condition); that no other State would have jurisdiction as the home state, etc. (only NewYork could meet that condition); or that the forum court has continuing jurisdiction pursuant to the PKPA inasmuch as jurisdiction continues under the forum State’s law and at least one parent remains a resident of the forum (for reasons stated infra, only NewYork meets that condition). Family Court has exercised jurisdiction over the visitation dispute in a manner consistent with the provisions of the PKPA. NewYork was the child’s home state at the time of the commencement of this proceeding and has been the residence of one parent (and of the child) since the entry of Family Court’s last order on the issue of visitation and even since the entry of the original Wyoming divorce decree.

The court concluded that “a court of a State [i.e., Wyoming] shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another State [i.e., NewYork] where such court of that other State [i.e., NewYork] is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination.” Here, of the two current visitation proceedings, the first to be commenced was the NewYork proceeding.

We at Stephen Bilkis & Associates, with its New York Family Lawyers, can fully protect you and your loved ones’ rights, whether you have a custody issue or need an order for protection. It has offices easily accessible within New York Metropolitan area, including Corona, New York.

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