Matter of Jamie D. v Traci V.

[*1] Matter of Jamie D. v Traci V. 2009 NY Slip Op 50382(U) [22 Misc 3d 1131(A)] Decided on March 5, 2009 Family Court, Clinton County Lawliss, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 5, 2009
Family Court, Clinton County

In the Matter of a Proceeding Under Article 6 of the Family Court Act, Jamie D., Petitioner,

against

Traci V., Respondent.



XXXXX



Meredith A. Neverett, Plattsburgh, for Jamie D.

Robert A. Kagan, Plattsburgh, for Traci V.

Cheryl Maxwell, Plattsburgh, Law Guardian

Timothy J. Lawliss, J.

On December 3, 2008, Jamie D. filed a Petition seeking the modification of the parties' New York State Judgment of Divorce dated February 25, 1999, regarding Jamie D.'s visitation with the parties' child, Cerise D. (d/o/b: xx/xx/xxxx).

On January 5, 2009, Traci V. filed a Notice of Motion seeking the dismissal of Jamie D.'s petition arguing that the State of New York (where Jamie D. still resides) lacks exclusive, continuing jurisdiction over custody proceedings concerning this child. In the alternative, Traci V. requests that this Court decline jurisdiction in favor of Connecticut (where she and the child reside).

DRL § 76-a

Article 5-A of the Domestic Relations Law (DRL), titled the Uniform Child Custody [*2]Jurisdiction and Enforcement Act [UCCJEA], addresses obtaining and enforcing orders of custody and visitation across state lines (see, DRL §75). 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 ...

At the outset, the Court finds DRL §76-a(1)(b) is inapplicable because Jamie D. presently resides in New York. Thus, 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).[FN1]

Jamie D.'s petition seeks a visitation schedule and alleges the following facts. When the parties entered into the their divorce settlement, he, Traci V. and the child resided in Clinton County, New York. Jamie D. has continued to reside in New York since the parties separated. Traci V. relocated to the State of Connecticut approximately eight years ago. After the relocation, the parties arranged informally for Jamie D. to visit with the child for an extended period in New York over the summer and during some of the child's spring, winter and Christmas school vacations. In July of 2008, Traci V. informed Jamie D. that if he wanted to exercise any visitation with the subject child he would have to come to Connecticut. The only explanation Traci V. gave Jamie D. for her new position was that the subject child has an attitude when she comes home and that Jamie D. and his family are a bad influence. During conversations between Jamie D.'s counsel and Traci V. (prior to her retaining counsel), Traci V. stated that she would not send the child to New York due to Jamie D.'s alcohol and marijuana abuse and her concerns regarding the child's safety during visits. Traci V. claimed that Jamie D.'s family members and his current girlfriend were the source of her information. Jamie D. argues that because the issue being litigated is the safety of visitation with Jamie D., the relevant evidence exists in New York.

Traci V. alleges the following facts. In the eight years that Traci V. and the child have resided in Connecticut, Jamie D.'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 [*3]one week. 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 Traci V. to litigate the matter in New York.

Again, because DRL §76-a(1)(b) does not apply in this instance, New York has exclusive, continuing jurisdiction unless a New York Court determines that neither the child, nor the child and one parent have a significant connection with New York and that substantial evidence is no longer available in New York concerning the child's care, protection, training and personal relationships. See, DRL § 76-a(1)(a).

Based upon the information presented, it appears most, if not all, of the visitation between Jamie D. and the subject child took place in New York. The subject child has extended family in New York. The primary witnesses regarding Jamie D.'s alleged alcohol abuse, use of marijuana, and any additional safety concerns (including any individual who may conduct a substance abuse evaluation, Jamie D.'s family members and Jamie D.'s current girlfriend) are located in New York. Basically, pertinent information regarding the child's best interest and safety during visitation with Jamie D. exists in New York. The Court concludes that Jamie D. 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.

DRL § 76-f

The Court turns to the next question presented, should the Court find that New York is an inconvenient forum and decline to exercise jurisdiction under DRL §76-f. DRL §76-f requires that the Court consider all relevant factors, including:

(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 the 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

(h) the familiarity of the court of each state with the facts and issues in the pending litigation. see, DRL § 76-f(2). [*4]

The parties and the law guardian all had an opportunity to submit their position and relevant information, see, DRL §76-f(2). Regarding subparagraph (a), as previously set forth, Traci V.'s may present evidence of alcohol and marijuana abuse by Jamie D., as well as, other safety concerns. Although in theory, both state courts could protect the parties and the child, New York is in a better position to do so. It appears that the evidence that Traci V. intends to rely upon would include Jamie D.'s family members and Jamie D.'s current girlfriend. All those individuals are currently located in the State of New York and thus, not subject to the subpoena powers of the State of Connecticut. Thus, New York would have a superior ability to compel, if necessary, the testimony of individuals having potentially relevant information regarding the child's safety.

Regarding subparagraph (b), the child has resided outside New York for approximately eight years. In the vast majority of cases, the eight year connection with the other state would be a strong and compelling factor in favor of New York electing to decline jurisdiction; however, as noted above, this case solely involves visitation, not custody, and since the majority of evidence regarding visitation, as opposed to custody, is located in New York, in this case the eight year period is not a compelling factor in favor of declining jurisdiction.

Regarding subparagraph (c), the distance between the Court here and the Court in Traci V.'s county of residence appears to be approximately 300 miles. Regardless of where the proceeding takes place, one party must travel. The subject child, as well, must travel if the matter remains in New York. While the distance is not insignificant, the Court notes that travel by car to this County is certainly feasible during one day (about five hours).

Regarding subparagraph (d), Traci V. alleges that she is a self-employed attorney representing indigent clients (under a state contract) and that her income is not substantial. Further, Traci V. alleges, in addition to her loss income, that she has two other children and will incur additional expenses to care for those children in Connecticut while she is here. Additionally, Traci V. alleges Jamie D. owes significant child support arrears (in excess of $25,000). Jamie D. alleges that he earns only approximately $15,000 annually.

Regarding subparagraph (e), the Court has no evidence the parties' ever made any agreement regarding jurisdiction. Regarding subparagraph (f), the Court set forth previously its findings concerning the nature of the evidence in New York and concludes that it appears more evidence exists in New York on the limited issue of visitation between the subject child and Jamie D.. Regarding subparagraph (g), the Court has no knowledge of the ability of a court in Connecticut to expeditiously decide a visitation petition. This Court will promptly schedule a conference (and trial if needed) in this matter. Regarding subparagraph (h), an initial appearance and consideration of jurisdiction (including both written and oral arguments) have taken place. To the best of this Court's knowledge, there is not a pending action regarding custody or visitation of the subject child in Connecticut. The Court finds no other factor supporting a finding that this Court is an inconvenient forum.

Requiring the custodial parent and, most importantly, the child to travel some 300 miles for Court proceedings and discussions with counsel is inconvenient. While not ideal, telephone and written communication could supplement in person contact and may help mitigate the distance. The Court finds it must weigh the inconvenience to both Traci V. and the subject child of the matter continuing here in New York against the Court's finding that the most pertinent [*5]information regarding the child's best interest and safety during visitation with Jamie D. exists in New York. The Court concludes that the child's best interest and safety during visitation is paramount. For these reasons, this Court does not find that it is an inconvenient forum.

IT IS, NOW, THEREFORE,

ADJUDGED, pursuant to DRL §76-a, that this Court has exclusive, continuing jurisdiction to determine this modification application; and it is further

ORDERED, that Traci V.'s Motion seeking to have this Court decline jurisdiction pursuant to DRL §76-f is hereby DENIED and it is further

ORDERED, that by separate Order of this Court, the above-captioned matter will be scheduled for a conference; and it is further

ORDERED, all parties shall take notice that: pursuant to section 1113 of the Family Court Act, an appeal must be taken within thirty days of receipt of the order by appellant in court, thirty-five days from the mailing of the order to the appellant by the clerk of the court, or thirty days after service by a party or law guardian upon the appellant, whichever is earliest.

Dated: March 9, 2009ENTER

Honorable Timothy J. Lawliss

Family Court Judge Footnotes

Footnote 1:Connecticut has also adopted the UCCJEA. See, C.G.S.A. § 46b-115 et. seq. Thus, Connecticut may only modify New York's order in this matter if the Court in Connecticut has jurisdiction to make an initial determination; and, a New York Court finds either (1) New York no longer has exclusive, continuing jurisdiction, or (2) that a court in Connecticut would be a more convenient forum. See, C.G.S.A. § 46b-115m(a).