Yassin M. v Aman O.
Annotate this CaseDecided on September 8, 2009
Supreme Court, Erie County
Yassin M., Petitioner,
against
Aman O., Respondent.
SF2009-900930
Attorney for Petitioner: Joan Warren
Attorney for Respondent: Thomas R. Lochner, Esq.
Rosalie Bailey, J.
Petitioner, Mr. M, seeks a writ of habeas corpus directing the return to him of two of the parties' children, alleging that he has custody pursuant to an order from the Nation of Yemen. The respondent, Ms. O., and the children are currently located in the State of Michigan and have never resided in New York. Mr. M., who currently resides in this state, argues that this court has jurisdiction to hear his petition pursuant to the Uniform Child Custody Jurisdiction Enforcement Act ("UCCJEA"), New York Domestic Relations Law Sec. 75, et seq. Ms. O. argues that this court has no subject matter jurisdiction, as the children are not located here.
Writs of habeas corpus are governed by Section 70 of the Domestic Relations Law, which very clearly states "[w]here a minor child is residing within this state, either parent may apply to the Supreme Court for a writ of habeas corpus to have such minor child brought before such court." By its very terms, section 70 does not apply to this case and I have no power to grant the writ of habeas corpus. Mr. M. has not cited any case law contradicting the clear language of the statute.
Mr. M. argues that the UCCJEA provides an independent basis for subject matter jurisdiction. His argument, however, focuses on the question of whether Yemen or Michigan is the "home state" of the children. This question is irrelevant. Determining the home state only matters in an application for an initial custody determination or a petition to modify a custody determination. New York would not have jurisdiction to do either, since New York is obviously not the home state.
This is a question, instead, of enforcement, governed by Title III of the UCCJEA, section 77, et seq. Title III does not address the question of subject matter jurisdiction. The National Commissioners On Uniform State Laws characterizes the UCCJEA proceeding as "the production of the child in a summary, removal process based on habeas corpus" (UCCJEA, 1997, Comment to Section 308, p. 53). As stated above, habeas corpus is clearly limited to situations where the children are located within this state. [*2]
Michigan is the state which has physical power over these children. New York has no ability to reach into that state and pull the children out, without the assistance and cooperation of Michigan authorities. If this court were to issue an order directing return of the children to Mr. M., he would still be required to take that order to Michigan and either register it and petition the court for enforcement pursuant to section 77-e of the UCCJEA, or commence a proceeding for expedited enforcement in the courts of that state, pursuant to section 77-g. He is already in possession of an order from Yemen enabling him to utilize those same procedures. Any order issued in New York would be duplicative of the order already issued. Any proceedings taking place in this State would be, therefore, effectively meaningless.
Lacking subject matter jurisdiction, I have no choice but to dismiss this petition.
It is, therefore,
ORDERED, that the petition is dismissed, without prejudice.
This constitutes the decision and order of this Court. Submission of an order by the parties is
not necessary. The mailing of a copy of this Decision and Order by this Court shall not
constitute notice of entry. This decision was based upon the following papers submitted
by the parties:
Dated:September 8, 2009
Buffalo, New York
____________________________________
ROSALIE S. BAILEY
Acting Justice of the Supreme Court
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