Matter of Marina V. v Nikolai G.
Annotate this CaseDecided on February 20, 2018
Family Court, Kings County
In the Matter of a Custody Proceeding, Pursuant to Family Court Act Art. 6, between Marina V., Petitioner,
against
Nikolai G., Respondent.
V-27765-17/17A
Javier E. Vargas, J.
Papers/Numbered
Summons, Petitions & Exhibits Annexed 1
Washington Summons, Petitions, Affidavits & Exhibits Annexed 2
Memorandum of Law 3
Washington UCCJEA Determination & Order 4
Court Proceedings' Transcripts 5
Upon the foregoing papers and for the following reasons, the application by Respondent Nikolai G. (hereinafter "Father"), for this Court to retain continuing exclusive jurisdiction of his Petition to enforce a prior Custody & Visitation Order from New York State, is denied and jurisdiction is hereby relinquished to the sister State of Washington in accordance with the following decision.
As way of background, the Father and Petitioner Marina V. (hereinafter "Mother") were married, lived together as husband and wife for several years in New York, and were blessed with the birth of their two Children. It appears that Mother has been the moneyed spouse throughout the marriage, currently working in an executive position for Microsoft Corp. Marital difficulties eventually ensued, prompting Mother to commence an action for divorce and ancillary relief against Husband in Richmond County Supreme Court in 2010. While the divorce was pending, the parties entered into a Settlement Agreement dated August 25, 2011, wherein Father consented to Mother's relocation to California with their Children in exchange for, inter alia, liberal telephonic/video communication with the Children and several periods of parenting time with them in New York during the Christmas, Winter, Spring and six-week summer vacation breaks, with Mother paying for their transportation. Relevantly, the Agreement provided that: "the parties agree that New York shall maintain exclusive jurisdiction with regard to any of the terms contained within this Agreement. Should any other State claim [*2]concurrent jurisdiction, New York law shall be applied."
By Judgment of Divorce dated November 21, 2011, the Supreme Court (Giacobbe, J.) dissolved the parties' marriage as irretrievably broken, awarded Mother sole custody of the Children, ordered Father to pay child support of $168 per week and granted him enumerated rights of visitation with the Children, including alternate weekend visitation as well as holidays and summer vacations. It should be noted that the aforementioned Agreement was somewhat inconsistent and not incorporated or mentioned in the Divorce Judgment. However, the Judgment provided that the Richmond County Supreme Court "retains jurisdiction of this matter concurrently with the Family Court for the purposes of specifically enforcing such of the provisions * * * as are capable of specific enforcement to the extent permitted by law with regard to maintenance, child support, custody and/or visitation."
In accordance with the Agreement, Mother and the Children relocated to California where they lived for two years until the Summer of 2013. That year, in July 2013, Mother moved with the Children to Seattle, Washington, to work as an executive at Microsoft. Although Father was initially unaware of her relocation there, he had Spring Break vacation visitation with the Children in 2014, and apparently knew their new residence. It is undisputed that was the last time he fully exercised his visitation rights with the Children. Nevertheless, no proceeding for violation, enforcement or otherwise was commenced by Father against Mother during the ensuing three years.
Instead, it was Mother, who by Summons and Modification Petition dated July 28, 2017, commenced the underlying proceedings in Kings County Family Court from her Washington residence, primarily to modify the Divorce Judgment to obtain permission to apply for passports for the Children to enable them to travel outside of the United States, apparently because of an impending wedding of a relative in India. She alleged that Father has not visited with the Children for several years, nor has he made any "attempts to reunite" with them. Father, represented by counsel, objected to the modification maintaining that Mother was intending to surreptitiously and permanently relocate to India with her new partner, Ranju D. After oral argument, by Short Form Order dated October 10, 2017, this Court (Vargas, J.) granted Mother's Petition and permitted her to apply for the Children's passport and travel with them as long as itineraries and destinations were shared with Father, thereby leaving intact the other provisions of the Divorce Judgment and Agreement.
According to Mother, Father immediately called the Seattle police to investigate Mother's partner for allegedly physically and mentally abusing the Children. The police came to their Seattle residence and spoke to the Child and Mr. D.'s parents, who were caring for him that day, but found nothing to be concerned about and closed the investigation. It is alleged that Father called again with the same allegations on October 13, 2017, but that after investigating the Seattle police left without incident. Father also instituted a child support proceeding against Mother to downwardly modify the Support Order.
By Enforcement Petition dated October 10, 2017, Father filed to instant proceeding against Mother seeking to enforce the visitation provisions of the Judgment and Agreement, arguing that Mother relocated without his permission to Washington, has manipulated and aligned the Children against him, and had prevented him from seeing and visiting with the now pre-adolescent Children in accordance with the Agreement. Father also alleged that Mr. D. physically and mentally abuses the Children. Mother countered that it has been Father who had failed to contact or visit with the Children since 2014, through no fault of her own; Father [*3]claimed that he was medically indisposed during that time. Upon the return date, by Temporary Order of Visitation (Vargas, J.) dated December 8, 2017, this Court brokered an agreement for Father to visit with the Children during the holiday weekend of January 13, 2018 in New York, with Mother purchasing their plane tickets.
Simultaneously therewith, by Summons and Petition to Change a Parenting Plan, Residential Schedule and Custody Order dated November 29, 2017, Mother commenced proceedings against Father in the Superior Court of Washington, County of King, for a restraining order against him and to change their parenting/residential plan in order to require Father to have only supervised visitation with the Children based on his lengthy neglect of his parental duties towards the Children and his lack of emotional ties with them. Immediately upon learning of the simultaneous proceedings, this Court communicated with the Washington State Superior Court Judge assigned to Mother's proceedings, the Honorable Susan J. Craighead, to preliminarily discuss the jurisdictional predicates and logistics of the instant proceeding. We scheduled written and/or oral arguments for an appearance on February 7, 2018 by the parties, their counsel, and Judge Craighead in accordance with the Uniform Child Custody Jurisdiction & Enforcement Act ("UCCJEA") (see Domestic Relations Law § 76—e[2]; Washington Revised Code § 26.27.101; Matter of Frankel v Frankel, 127 AD3d 1186 [2015]).
At the hearing, Father moved for a dismissal of Mother's Washington State proceedings or, in the alternative, for New York to retain its continuing exclusive jurisdiction pursuant to UCCJEA, arguing that New York was the parties' residence when they obtained their 2011 Divorce Judgment, that the parties have litigated other recent Family Court Orders for visitation and child support here, and that the parties' Agreement specifically retained continuing exclusive jurisdiction in New York. In opposition to Father's application, Mother maintains Washington should have jurisdiction over these proceedings because Father - who is the only one residing in the state - has not exercised his visitation rights for over three years, has repeatedly inappropriately threatened police intervention when he does not get his way, and it would not be in the Children's best interests to keep jurisdiction here since they have not resided in New York for over seven years. This Court agrees with Mother.
Pursuant to the UCCJEA, which has been adopted by New York and Washington State (see Domestic Relations Law Art. 5-A; Washington Rev. Code §§ 26.27.011 et seq.), a court of New York State that has made a child custody determination has "exclusive, continuing jurisdiction" over the determination until: "A court of this state or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state" and that "substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships" (Domestic Relations Law §§ 76-a[1][a], 76—b[2]; see Stocker v Sheehan, 13 AD3d 1, 6 [2004]). "If the court [of this state] determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with [Domestic Relations Law article 5—A], the court of this state shall stay its proceeding and communicate with the court of the other state" (Domestic Relations Law §§ 75—i[1], 76—e[2]; see Matter of Woods v Woods, 56 AD3d 789, 791 [2008]). Importantly, "a record must be made" of the communication between the two courts and "[t]he parties must be informed promptly of the communication and granted access to the record" and an opportunity to participate (Domestic Relations Law § 75—i[4]; Matter of Andrews v Catanzano, 44 AD3d 1109, 1111 [3rd Dept. 2007]).
"A court of this state which has jurisdiction under this chapter to make a child custody [*4]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]; see Matter of Wnorowska v Wnorowski, 76 AD3d 714, 715 [2010]). The issue of inconvenient forum - whether it is appropriate for a court of another state to exercise jurisdiction - depends on an examination of the 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 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 litigation" (Domestic Relations Law § 76—e[2]; Washington Rev. Code § 26.27.261).
Applying these principles to the matter at bar, Father's application for this Court to retain exclusive, continuing jurisdiction over his pending Enforcement Petitions is denied. Because Father continues to reside in New York and this State granted the Divorce Judgment and all Custody/Visitation and Child Support Orders involving the Children, New York clearly has retained "exclusive, continuing jurisdiction" over all proceedings pertaining to the Children (id.). The undersigned immediately followed the procedures mandated by the UCCJEA, gave the parties an opportunity "to present facts and legal arguments before a decision on jurisdiction is made" (Domestic Relations Law §§ 75—i[1], 76—e[2]), and communicated with the Washington Superior Court on the record and in the presence of counsel and the parties on February 7, 2018.
Both Courts afforded the parties and their counsel an additional opportunity to address the courts prior to our jurisdictional determination. Upon the conclusion of the arguments and its review of the papers submitted, Judge Craighead agreed with the Mother that Washington is the proper home state of the Children because she has undisputedly resided with them outside of New York for over seven years and for the last four in Washington, where all the Children's friends, possible witnesses and academic and medical records are located. The Judge also stressed in her determination to assume jurisdiction that Mother, as the moneyed spouse, could afford and will pay for Father's travel expenses to go to Washington.
Following this consultation of the Courts of both states on the record pursuant to the UCCJEA, this Court wholeheartedly agrees with Judge Craighead's compelling jurisdictional reasoning and hereby relinquishes its continuing exclusive jurisdiction in favor of the Washington Superior Court (see Domestic Relations Law §§ 75-i[1], 76-a). Among other things, not only has the Mother and Children lived in Washington as their "home state" for over four years and it would be detrimental for the Children to have to travel the substantial distance between both States, but it is undisputed that Father has not exercised or enforce his visitation rights for several years. Although the parties had agreed that New York would retain jurisdiction over custody/visitation matters in the Agreement and Divorce Judgment, I conclude that those provisions are not controlling herein, particularly in view of the lack of court intervention with respect to visitation issues prior to the instant proceedings (see DeJac v DeJac, 17 AD3d 1066, 1068 [2005]).
"Substantial evidence is no longer available in [New York] state concerning the child's [*5]care, protection, training, and personal relationships" (Domestic Relations Law § 76-a). Indeed, the Washington Superior Court has the ability to "decide the issue expeditiously" (Washington Rev. Code § 26.27.261[2][f, g]), having already scheduled a court appearance with the parties on February 26, 2018. As such, Washington is the more convenient forum for this proceeding because, should it proceed to trial, all potential witnesses, except for Father, including siblings, relatives, friends, medical providers, religious figures and the child services' caseworkers, would appear to be local residents or employed in Washington State (see McNally v McNally, 210 AD2d 940 [4th Dept. 1994]).
In accordance with the foregoing, this Court relinquishes its continuing exclusive jurisdiction in favor of the Washington Superior Court. All proceedings are hereby stayed until February 26, 2018 to afford Father time to file his Enforcement Petitions there, at which time the pending New York proceedings will be dismissed (see Domestic Relations Law § 76-f[3]). The foregoing constitutes the Decision and Order of the Court.
E N T E R:
Dated: February 20, 2018
Brooklyn, New York
__________________________________________
J.F.C.
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