AG v VS

[*1] AG v VS 2021 NY Slip Op 21179 Decided on July 8, 2021 Supreme Court, Queens County Koenderman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on July 8, 2021
Supreme Court, Queens County

AG, Petitioner-Mother,

against

VS, Respondent-Father.



XXXX
Elisa S. Koenderman, J.

On December 20, 2020, the Court denied Petitioner-Mother's [the "Mother"] oral motion, opposed by Petitioner-Father [the "Father"] and the Attorney for the Child, for the Court to decline to continue to exercise jurisdiction of the above-referenced Custody Petitions on the ground that New York is an inconvenient forum and that New Jersey is a more appropriate forum (see DRL § 76-f[3]). Most recently, on March 23, 2021, the Mother requested an opportunity to file a written application for the aforementioned relief.[FN1] Although the Court indicated that it was inclined to deny the written motion for the reasons it previously had articulated, it granted the Mother leave to file an Order to Show Cause application returnable for the next appearance date of May 18, 2021. The Mother neglected to file such application and on April 20, 2021, instead filed and served a Summons and Complaint for Child Custody and Child Support in New Jersey Superior Court, Chancery Division, Middlesex County [the "New Jersey court"]. Especially in light of her preemptive action, the Court declined to afford the Mother further opportunity to file a written application, and reiterated its denial of her motion.

On June 26, 2018, the Mother filed the above-referenced Petition for Custody of the child, AS, [the "child"] in Queens Family Court ["QFC"]. The Mother previously had filed a Family Offense Petition against the Father on behalf of herself and the child in QFC on May 16, 2018. On July 3, 2018, the Father cross-filed the above-referenced Petition for Custody of the child in QFC.

On August 28, 2018, the Father was arrested and charged under separate dockets in Queens Criminal Court ["QCC"] with Criminal Contempt in the Second Degree and Aggravated Harassment in the Second Degree. On September 20, 2018, the Father's criminal cases and the parties' family cases were transferred to the Queens Supreme Court, Integrated Domestic [*2]Violence Part ["QIDV"].[FN2] On that date, this Court appointed Children's Law Center ["CLC"] as Attorney for the Child [the "AFC"] on the family cases.[FN3] On February 1, 2019, the Father's criminal cases were adjourned in contemplation of dismissal. The parties' family cases remain pending.

Shortly before the November 23, 2020 virtual conference date, despite being represented by counsel, the Mother contacted the QIDV court clerk to inquire about "transferring" the custody case to New Jersey, volunteering that she recently had married and moved there. The Mother also disclosed that she was pregnant. The clerk informed the Mother that she could not transfer the custody case to New Jersey and directed her to speak to her lawyer. At the November 23, 2020 virtual conference, the Court notified counsel about the Mother's communication with the clerk. Counsel, including the Mother's former attorney, TJW, Esq., expressed that they were unaware that the Mother recently had married and moved to New Jersey.

At the following virtual appearance on December 4, 2020, Mr. W moved to be relieved as the Mother's attorney due to a breakdown in communication with his client. The Mother indicated that she had obtained a New Jersey attorney, DR, Esq., to represent her. However, Mr. R neither appeared nor filed a consent to change attorney form on the Mother's behalf. The Court denied Mr. W's application to be relieved and advised the Mother to work with her attorney of record, who had been on the case for almost two years. The Court alternatively informed the Mother that she could hire new counsel in New York or represent herself. The Mother renewed her request to have the case "transferred" to New Jersey, arguing that she, the Father and the child all now lived there and that it was a hardship for her to travel to New York, particularly since she was pregnant.[FN4]

When the Mother filed her Custody Petition on June 26, 2018, she and the child resided in Queens, New York, where they had lived for almost five years since the child's birth, and the Father lived in New Jersey. At that time, since the child had lived in New York with her mother for at least six consecutive months immediately prior to commencement of the child custody proceeding, under the Uniform Child Custody Jurisdiction and Enforcement Act ["UCCJEA"], New York was the child's home state (see DRL § 75-a[7]); Montanez v Tompkinson, 167 AD3d 616, 618 [2d Dept 2018]). Accordingly, this Court has jurisdiction to make an initial child custody determination (see DRL § 76[1][a]). Nevertheless, since both parents and the child do not presently reside in New York, this Court acknowledges that it lacks exclusive continuing jurisdiction of the custody case (see DRL § 76-a[1][b]).

Indeed, it appears that New Jersey is now the child's home state under the UCCJEA.[FN5] [*3]Regardless, since a "simultaneous proceeding" previously was commenced in this Court, which has initial child custody jurisdiction, the New Jersey court may not exercise jurisdiction unless this Court stays or terminates its proceeding on the ground that the New Jersey court is a more appropriate forum (see DRL § 76-e[1]; Quevedo v Overholser, 187 AD3d 923, 924 [2d Dept 2020]; Hollander v Weissberg, 147 AD3d 831, 832-833 [2d Dept 2017]). Further, if the New Jersey court determines that a "simultaneous proceeding" has been in commenced in this Court, and that this Court has initial child custody jurisdiction, it must stay its proceeding and communicate with this Court (see DRL § 76 [e][2]; see Quevedo, 187 AD3d at 924-925; Hollander, 147 AD3d at 833). Consequently, unless this Court determines that the New Jersey court is a more appropriate forum, the New Jersey court must dismiss its proceeding (see id.)

Accordingly, this Court may decline to exercise its initial child custody jurisdiction over the instant case if it finds that New York is an inconvenient forum and that the New Jersey court is a more appropriate forum (see DRL § 76-f; Helmeyer v Setzer, 173 AD3d 740, 743 [2d Dept 2019]; Montanez, 167 AD3d at 618; Wnorowska v Wnorowski, 76 AD3d 714 [2d Dept 2010]). The issue is within the Court's discretion after consideration of the statutory factors (see Helmeyer, 173 AD3d at 743; Montanez, 167 AD3d at 618; Wnorowska, 76 AD3d at 715). These factors include the length of time the child has resided in New Jersey; the distance between this Court and the New Jersey court; the nature and location of the evidence required to resolve the case, including the child's testimony; the ability of each state court to resolve the case expeditiously; and the familiarity of each state court with the facts and issues of the case (see DRL § 76-f[2]; Greenfield v Greenfield, 115 AD3d 645 [2014]). Whether the forum has optimal access to relevant evidence is particularly important to the determination of jurisdiction (see id.)

Here, the child has resided in New Jersey for only about nine months. The distance between this Court and the New Jersey court is approximately 49 miles, or an hour an fifteen minute drive. Regardless, given the COVID-19 pandemic, appearances in this Court have been exclusively virtual since March 2020. Nevertheless, due to the limited ability during virtual appearances to curtail the parties' "disorderly, contemptuous or insolent behavior . . . directly tending to interrupt its proceedings, or to impair the respect due its authority" (Judiciary Law § 750[1]), the Court directed the parties to appear in person on the next adjournment date of July 8, 2021. In any event, the distance between each state court "is not so great as to present any inconvenience" to the parties or the child (Helmeyer, 173 AD3d at 743-744).

Moreover, the majority of the evidence required to resolve the case remains in New York. The New York City Administration for Children's Services ["ACS"] has conducted several Court Ordered Investigations ["COI"] in the case, including home assessments and interviews of the parties, child and collateral informants. Queens County Family Court Mental Health Services ["FCMHS"] has conducted Parental Capacity Evaluations of both parties. Two different local agencies — Comprehensive Family Services and Delores Andrews — have conducted supervised visitation between the Father and the child in New York. In addition, the Mother's former sister-in-law, TG, and the Father's friend, GF, both New York residents, also supervised the Father's visitation with the child in New York.[FN6] Indeed, during one such visit on [*4]November 15, 2020, supervised by both TG and GF at an indoor playground in Queens, the Mother suddenly arrived and sought to remove the child. An altercation between the parties ensued in the child's presence. NYPD responded and issued a Domestic Incident Report but declined to make any arrests. ACS subsequently investigated the incident pursuant to this Court's Order. The parties vehemently dispute the circumstances surrounding the incident, which almost certainly will be a focal point of trial. In sum, a plethora of both agency and civilian witnesses with potentially relevant testimony to offer on the custody determination are located in New York.

Moreover, because this Court is intimately familiar not only with the facts and issues of the case but also with the parties, it has a greater ability than the New Jersey court to resolve the case expeditiously (see Helmeyer, 173 AD3d at 744). This Court has handled the case since its inception — having presided over almost twenty appearances, both in person and virtual, over the past two and one half years — and has direct and complete access to all the records and files (see id.).

Furthermore, the AFC objects to this Court ceding jurisdiction to the New Jersey court. The child has been represented by CLC since the case began and has a relationship not only with the assigned AFC but with a staff social worker. The child has been exposed to escalating conflict between the parties, who have a contentious relationship, and is particularly vulnerable to undue influence. Thus, on November 23, 2020, the AFC requested and received an Order for the Mother to produce the child in person at her office on December 8, 2020 to ensure a confidential client interview. Notably on January 15, 2021, the AFC stated that pursuant to such interview she no longer could take a position on the Father's parental access to the child.

Similarly, although the AFC consistently has sought to work with the Mother to enroll the child in appropriate therapy, on March 23, 2021 the AFC recommended that the child's therapy be deferred until it could occur in person since the virtual options available due to the pandemic were inappropriate under the circumstances of the case.[FN7] Thereafter, the Mother enrolled the child in therapy in New Jersey without consulting or informing the AFC. On May 18, 2021, the Mother disclosed that the child had engaged in approximately seven counseling sessions, despite the AFC not having had the opportunity to vet the therapist. The Court directed the Mother immediately to supply the therapist's contact information to the AFC and to execute any HIPAA releases necessary for the AFC to confer with the therapist.

Given the complex and sensitive issues affecting the child, appointing new counsel for her in New Jersey would be extremely detrimental, requiring the child to recount her experiences and feelings to an attorney with whom she has not yet developed a relationship, and who is unfamiliar with the family dynamics and case history. Retaining jurisdiction in New York would preserve the continuity of the child's representation which is central to her best interests (see Helmeyer, 173 AD3d at 744).

Finally, the Mother's attempt to transfer jurisdiction in this case appears to be a blatant effort to forum shop. The Mother consistently has resisted this Court's Orders granting the Father parental access to the child, either by unduly involving herself in or interfering with the Father's visits,[FN8] or by refusing to produce the child for such visits. Indeed, on January 15, 2021, the Court granted the Father's Petition for Violation of an Order and awarded the Father unsupervised visitation with the child weekly on Sunday for a four hour period.[FN9] For this Court to relinquish jurisdiction to the New Jersey court "would essentially give the Mother a choice of jurisdictions, and thus the concomitant right to disregard any orders of the court of which she availed herself when she failed to obtain the desired outcome," which is precisely the situation that the UCCJEA was enacted to avoid (Michael McC v Manuela A, 48 AD3d 91,99 [1st Dept 2007]).

Accordingly, this Court declines to stay or terminate its custody proceeding on the ground that New York is an inconvenient forum and that the New Jersey court is a more appropriate forum (see DRL § 76-e[1]; Quevedo, 187 AD3d at 924; Hollander, 147 AD3d at 832-833).

This constitutes the Decision and Order of the Court.

Dated: July 8, 2021

Hon. Elisa S. Koenderman, AJSC Footnotes

Footnote 1:The Mother made the request through her current attorney, IY, Esq.. The Mother substituted her original attorney, KA, Esq. with TJW, Esq. on January 16, 2019. Mr. W represented the Mother until January 15, 2021, when the Mother substituted him with BMJ, Esq. The Mother substituted Ms. J with Mr. Y on February 4, 2021.

Footnote 2:The Father subsequently filed a Family Offense Petition against the Mother in QIDV on November 8, 2018.

Footnote 3:CLC attorney TJG, Esq. has appeared on the child's behalf since February 4, 2019. On occasion, NM, a CLC social worker assigned to the case, also has been present with Ms. G.

Footnote 4:The Mother since has given birth.

Footnote 5:Notably, however, New Jersey may not have been the child's home state on the date that the Mother filed her Summons and Complaint for child custody there. The Verified Complaint states that the Mother and child moved to New Jersey on October 26, 2020 but the Summons is dated April 20, 2021, which is less than the six consecutive months required for home state jurisdiction.

Footnote 6:Until January 15, 2021, the parties exchanged the child at the 110th Precinct in Queens County and the Father's visitation occurred in Queens County.

Footnote 7:On July 13, 2020, at the AFC's behest, the Court issued an Order for the Mother to "enroll the child in therapy as referred by the child's attorney, CLC" forthwith. On December 4, 2020, after the AFC apprised the Court that the Mother still had not complied with the aforementioned Order, the Court issued a second Order for the Mother to "enroll the child in therapy as referred by CLC forthwith." On January 15, 2021, the AFC confirmed that CLC was assisting the Mother in attempting to enroll the child in therapy that was covered by the Mother's insurance.

Footnote 8:On December 4, 2020, the Court issued an Order prohibiting the Mother from "interfer[ing] with [the Father's access] by any means, including but not limited to arranging the location or activities for [the Father's] in person visitation or by interrupting or allowing a third party to interrupt [the Father's] in person visitation or video chat access to the child."

Footnote 9:The Mother failed to produce the child for a Court-Ordered visit on October 4, 2020, as well as for a Court-Ordered make-up visit on November 29, 2020.