Matter of N.V. v S.P.
Annotate this CaseDecided on August 31, 2015
Family Court, Westchester County
In the Matter of a Custody Proceeding Pursuant to Article 6 of the Family Court Act N.V., Petitioner,
against
S.P., Respondent.
V-XXXXX-13/15A
Thomas Samuel Kajubi, Esq., for the petitioner
270 North Avenue
New Rochelle, NY 10801
(914) 396-6005
Marygene K. Donnelly, Esq., for the respondent
63 Claremont Avenue
Rye, NY 10580
(914) 244-3300
Jessica H. Ressler, Esq., for the subject child
445 Hamilton Avenue, Suite 607
White Plains, NY 10601
(914) 761-2300
Arlene E. Katz, J.
In making the instant determination, the file was reviewed and the following papers were read:
PapersNumbered
Respondent's Motion to Dismiss, Forum Non Conveniens / Attorney Affirmation /1
Affidavit in Support (incorrectly titled Affidavit in Opposition) / Exhibits A-C
Attorney for the Child's Attorney Affirmation in Support2
Petitioner's Affirmation in Opposition3
The parties are the natural mother and father of M.V. who is presently five years old. On October 10, 2013, an order of custody and visitation on consent was entered (Schauer, J.) granting the parties joint legal custody, with the subject child to reside with the mother and an agreed-upon access schedule with the father.
On June 6, 2014, an order was entered (Schauer, J.) granting the father one month of continuous visitation with the subject child. On June 25, 2014, an amended/modified order was entered (Schauer, J.) which modified the June 6, 2014 order to correct the start date of the father's summer visitation and to include a provision regarding Skype contact with the mother while the child visited with the father.
On March 12, 2015, the father filed a petition to modify the 2013 order of custody and visitation on consent. By his petition, he sought additional visitation, a change to the visitation exchange location, sole custody, and permission to relocate with the child.
On June 16, 2015, a preliminary proceeding was held on the above petition. Throughout all proceedings referenced above, the father resided and continues to reside in California. The mother recently moved to North Carolina with the subject child. Both parties requested and were granted permission to appear telephonically for the preliminary proceeding. The Court reassigned the prior attorney for the child and ordered a home study to be conducted by the Westchester County Department of Probation.
On July 30, 2015, the mother filed a motion to dismiss the father's petition, alleging that New York is an inconvenient forum. The Attorney for the Child submitted an affirmation in support of the mother's motion. The father, by his attorney, submitted an affirmation in opposition to the mother's motion and, although not designated as a cross-motion, seeks sanctions against the mother for frivolous litigation. The motion was noticed to be heard on August 25, 2015. No one requested oral arguments. As neither parties nor counsel appeared on that date, this Court deems oral arguments and presentation of further evidence to have been waived.
Now, upon a reading of the above-referenced papers and a review of the contents of the file, this Court determines as follows:
Jurisdictional issues pertaining to obtaining, modifying and enforcing orders of custody and visitation across state and international lines are governed by the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law article 5-A). It was "designed to eliminate any jurisdictional competition between courts and strengthen jurisdictional certainty in child custody proceedings" (Felty v Felty, 66 AD3d 64, 69 [2d Dept 2009]), with "paramount importance" placed upon the child's home state (Michael McC. v Manuela A., 48 AD3d 91, 95 [1 Dept 2007], lv denied 10 NY3d 836 [2008]).
The mechanism for evaluating whether the home state is an inconvenient forum is set forth in Domestic Relations Law § 76-f: "A court of this state which has jurisdiction under this article to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum " (Domestic Relations Law § 76-f [1]). To begin the analysis, this Court must first determine whether New York has jurisdiction to make an initial [*2]custody determination. "[A] court of this state has jurisdiction to make an initial child custody determination only if this state is the home state of the child on the date of the commencement of the proceeding " (id. § 76 [1] [a]). Home state is defined as "the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding A period of temporary absence of any of the mentioned persons is part of the period" (id. § 75-a [7]).
The mother alleges that she and the subject child moved from California to New York in December 2012 (affidavit of respondent at 1, ¶ 2), and from New York to North Carolina on March 3, 2015 (id. at 2, ¶ 4); the father questions the latter date. In any event, the child has lived in New York for much longer than the required six consecutive months immediately preceding the filing of the father's petition. Therefore, it is clear to this Court and seemingly undisputed by the parties that New York was the child's home state at the time this proceeding was commenced. Further, it would appear that, using the same home state definition, North Carolina would not qualify as the child's home state until approximately September 3, 2015.[FN1] As New York was the child's home state at the time of commencement, this Court has jurisdiction to make a custody determination in the matter pursuant to Domestic Relations Law § 76 (1) (a).
Having determined that New York has such jurisdiction as the home state, this Court must now address the second part of the analysis to determine whether it "may decline to exercise its jurisdiction if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum" (id. § 76-f; see Dawber v Kelly, 287 AD2d 625 [2d Dept 2001]). Domestic Relations Law § 76-f (2) requires that this Court "shall consider whether it is appropriate for a court of another state to exercise jurisdiction" (id. § 76-f [2]). This Court must consider "all relevant factors," including the following eight enumerated factors (id.):
(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 this 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 [*3]litigation(id. § 76-f [2] [a]-[h]).
This Court will now address each of such required factors (see Dawber, 287 AD2d 625; Rey v Spinetta III, 8 AD3d 393 [2d Dept 2004]) based upon the information submitted by the parties and Attorney for the Child in the above-named papers. Upon a review of the entire historical file in this matter, there is no indication of any alleged or substantiated domestic violence, mistreatment or abuse of the subject child, and no siblings are known to this Court. Therefore, a consideration of which state could best protect the parties and child is not relevant in this case, and the first factor has been considered and determined inapplicable.
It is undisputed that the subject child has lived in North Carolina for less than six months. While this relatively short period of time might be a more significant factor for an older child, the subject child in this proceeding is only five years old. The father acknowledges that the subject child has not yet started school (affidavit of petitioner at 6, ¶ 12). As such, the subject child has no academic record in New York, and, going forward, all school records will exist in North Carolina. None of the papers submitted suggest any health, educational or behavioral concerns regarding the subject child, which indicates that his records would be similar to those of any other average five year old. It is axiomatic that children of that age are expected to reach many important milestones in the near future. While the child's prior records are important, the child's current and future records will be of paramount interest to any finder of fact in determining the issues raised in the father's petition. Those records will all be located in North Carolina. For issues regarding the child's prior records and development, it appears to this Court that a potential handful of professionals testifying remotely would be much more feasible than bringing all of the witnesses to the child's current life in North Carolina to New York, which is approximately 650 miles away.
Based upon a review of documents filed in the parties' 2013 child support proceeding, the most recent financial information available to this Court, the mother's 2012 gross income was approximately $42,600. The father in this proceeding qualified for a court-appointed attorney. Although this Court permitted both parties to appear electronically at the preliminary proceeding, it is impractical to continue with a contested custody proceeding in such a manner, and the parties' limited finances would make it a hardship for them to make repeated trips to New York for court appearances.
While these parties have litigated in Westchester County Family Court since 2013, the particular circumstances of the appearances in these matters require further explanation. When the initial custody petition was filed in 2013, the parties briefly appeared at a preliminary proceeding and then again at a brief conference, during which the matter was settled on consent. The modification petition filed in 2014 also consisted of a brief preliminary proceeding and a subsequent brief conference during which the matter was again settled on consent. The amended/modified order was addressed on papers only without appearances. This Court's predecessor presided over the 2013 and 2014 proceedings. In the instant matter, the parties appeared for the first time before this Court for a brief preliminary proceeding at which both parties appeared telephonically. No testimony was taken and no interim or final decisions were rendered. As such, this Court has virtually no familiarity with these parties and their past or current circumstances, and has no clear advantage over any other court in the country to [*4]determine the issues raised in the pending petition.
In fact, it would appear that North Carolina would be much more capable to decide these issues expeditiously given the fact that the child and virtually all evidence and witnesses exist there, except for the maternal grandparents and the professionals identified above. Hearing the matter in New York would involve significant time and expense to not only the parties and nearly all of the witnesses, but also to the court and any professional investigators or evaluators utilized to assist in making an ultimate determination. Either the parties and witnesses would have to all incur significant expense traveling to New York, or the courts in North Carolina would be burdened with facilitating and supporting multiple and lengthy remote appearances (see Domestic Relations Law §§ 75-j and 75-k). Already, this Court has encountered an obstacle in obtaining necessary information to assist in determining these issues. This Court issued an order directing the Westchester County Department of Probation to conduct a home study. However, the department is unable to complete this evaluation itself, as the mother and child live in North Carolina and the father lives in California. Rather than conducting such an investigation locally in North Carolina in cooperation with a similar agency in California, the Westchester County Department of Probation would have to coordinate with officials in both North Carolina and California. This does not appear to be a judicious use of public resources when a more streamlined procedure could be implemented in North Carolina. These obstacles will likely lead to an unduly lengthy and overly burdensome proceeding to the detriment of all involved.
The parties' 2013 order on consent provides that the father acknowledged at that time that New York was the child's home state and that he acknowledged and consented to the court's jurisdiction in that proceeding. However, the wording of that provision does not appear to evince an intent for the parties to have agreed that New York would retain continuing, exclusive jurisdiction, particularly under the present circumstances. In weighing this factor in conjunction with all the others, this Court does not find that it presents a compelling reason to retain jurisdiction in New York.
In addition to the specifically enumerated factors, this Court finds two additional factors to be particularly persuasive in its analysis. First, the father in this proceeding resides in California and, based upon a review of the file, appeared telephonically at all prior proceedings in all prior matters. This Court could not find any indication that he has ever appeared personally. Regardless of whether this matter is heard in New York or in North Carolina, the father will presumably either continue to appear electronically or incur the expense of traveling across the country. However, by having the matter heard in North Carolina, the mother and subject child could be spared such time and expense.
Second, for similar reasons, this Court agrees with the Attorney for the Child's position taken in her affirmation in support of the mother's motion that she would have great difficulty meeting with the subject child to develop a relationship and ascertain relevant facts in the matter (affirmation of Attorney for the Child at 3, ¶ 7). As a result, this Court is concerned that her ability to represent the child in a New York proceeding would be seriously hindered. In contrast, a local attorney in North Carolina would encounter none of these issues.
Finally, although this issue did not factor into the ultimate determination herein, it is notable to this Court that, notwithstanding the above analysis, the mother would have a tenable argument in just one week's time that North Carolina should be the child's home state.
After a consideration of all required factors and the additional factors deemed relevant by this Court, it is hereby determined that the parties and subject child no longer have a significant connection with New York, and the majority of the substantial evidence relevant at trial concerning "the child's care, protection, training, and personal relationships" exists in North Carolina and not in New York (Domestic Relations Law § 76-a [1] [a]). It is further determined that neither of the parties nor the subject child presently resides in New York. This Court finds that New York no longer has exclusive, continuing jurisdiction in this matter. Based upon the factors identified herein, this Court declines to exercise jurisdiction based upon its determination that it is an inconvenient forum, and determines that North Carolina is a more appropriate forum (see Greenfield v Greenfield, 115 AD3d 645 [2d Dept 2014]; Hassan v Silva, 100 AD3d 753 [2d Dept 2012]; DeGrizje v Delviccario, 279 AD2d 574 [2d Dept 2001]).
Although the mother seeks to have the father's petition dismissed, Domestic Relations Law § 76-f (3) requires that this Court "shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper" (Domestic Relations Law § 76-f [3]). Based upon this mandate, the mother, by her attorney, is directed to provide the father, by his attorney, and this Court with name, address and telephone number of the proper court in which the father may seek relief in North Carolina, on or before September 7, 2015. Upon receipt of such information, this Court will provide a certified copy of this Decision and Order on Motion to the appropriate court official in North Carolina forthwith. The father is directed to file a petition or its equivalent in said court on or before October 6, 2015. The instant proceeding is hereby stayed until October 7, 2015, on which date it shall be dismissed for the reasons stated herein.
Accordingly, it is hereby
ORDERED that the mother's motion to dismiss is granted to the extent set forth below; and it is further
ORDERED that the mother, by her attorney, shall provide the father, by his attorney, and this Court with the name, address and telephone number of the proper court in which the father may seek relief in North Carolina, on or before September 7, 2015; and it is further
ORDERED that the father shall file a petition or its equivalent in the appropriate court in North Carolina on or before October 6, 2015; and it is further
ORDERED that the instant proceeding shall be stayed until October 7, 2015; and it is further
ORDERED that on October 7, 2015, the instant proceeding shall be dismissed; and it is further
ORDERED that to the extent any relief sought by either party in the above-named papers has not been affirmatively granted above, such relief is denied.
This Constitutes the Decision and Order of this Court.
Dated: August 31, 2015
White Plains, New York
E N T E R:
___________________________________
HON. ARLENE E. KATZ, JFC Footnotes
Footnote 1:Although the father alleges that due to the child's extended summer visitation with him in California, the child would not have resided North Carolina for the required six months until November 2015, such an allegation has no basis in law as the final sentence in the provision defining the "home state" clearly states that "[a] period of temporary absence of any of the mentioned persons is part of the [six month] period" (Domestic Relations Law § 75-a [7]).
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