Opinion
File No. 223199
10-02-2023
In the Matter of a Custody/Visitation Proceeding, E.P., Petitioner/Respondent, v. B.S., Respondent/Petitioner.
Petitioner/Respondent E.P. was represented by Devian Daniels, Esq. The Respondent/Petitioner B.S. was self-represented. The children C. and A. were represented by Cindy J. Mendelson, Esq. The child M. was represented by Vivienne M. Hewitt, Esq.
Petitioner/Respondent E.P. was represented by Devian Daniels, Esq.
The Respondent/Petitioner B.S. was self-represented.
The children C. and A. were represented by Cindy J. Mendelson, Esq.
The child M. was represented by Vivienne M. Hewitt, Esq.
DECISION & ORDER ON MOTION
ROBERT A. MARKOFF, J.
Recitation, as required by CPLR §2219(a), of the papers considered in the review of the petitioner/respondent E. P.'s motion for an order (1) pursuant to Domestic Relations Law §§ 75-a (7) and 76 and the Uniform Child Custody Jurisdiction and Enforcement Act dismissing the petitions on the ground that New York lacks initial child custody jurisdiction; or, in the alternative (2) pursuant to Domestic Relations Law §§ 76-a and 76-f dismissing the petitions on the ground that New York should no longer exercise jurisdiction; or, in the alternative (3) pursuant to Family Court Act § 174 transferring the proceedings from Kings County to Rockland County:
Notice of
Attached Exhibits
Exhibits A-E
Affirmation in Opposition B. S., Mother of the Children
Exhibit A
Affirmation in Opposition (AFC for C. and A.)
Affirmation in Response to Motion (AFC for M.)
Reply Affirmation in Support
Attached Exhibits
Introduction
This case illustrates how following six years of child custody litigation in New York, a belated, but meritorious objection to New York's initial child custody jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter UCCJEA), and, more specifically, Domestic Relations Law §§ 75-a(7) and 76, mandates dismissal of the custody petitions. Alternatively, the custody petitions should be dismissed on the ground that New York is an inconvenient forum under Domestic Relations Law § 76-f.
The petitioner/respondent E. P. (hereinafter "the father") moves for an order pursuant to Domestic Relations Law §§ 75-a (7) and 76 dismissing the petitions on the grounds that New York lacks initial child custody jurisdiction; or, in the alternative pursuant to Domestic Relations Law §§ 76-a and 76-f dismissing the petitions on the ground that New York should no longer exercise jurisdiction; or, in the alternative (3) pursuant to Family Court Act § 174 transferring the proceedings from Kings County to Rockland County.
In opposition, the respondent/petitioner B. S. (hereinafter "the mother") argues that New York has continuing exclusive jurisdiction under Domestic Relations Law § 76-a and the UCCJEA, that New York should continue to exercise exclusive jurisdiction based upon the children's and the parties' connections to New York, and that New York is a more convenient forum than New Jersey. The attorney for the children (hereinafter "the AFC") C. and A. opposes the father's motion to dismiss based, in part, upon the children's connection with the AFC in New York. The AFC for M. takes no position on the father's motion given that M. will soon turn 18 years old and age out of the litigation.
Initial Child Custody Jurisdiction under Domestic Relations Law § 76
The threshold issue is whether New York has, or ever had, initial child custody jurisdiction under Domestic Relations Law § 76. The father contends that New York lacks initial child custody jurisdiction because New York is not the "home state" of the children within the meaning of Domestic Relations Law § 75-a (7) because none of the children were living in New York for the six-month period immediately before the filing of the petitions in November 2022. The parties acknowledge that previous custody petitions had been filed in New York in 2017, that New York had issued temporary orders regarding custody and visitation in those proceedings, and that the Family Court in New York has a long history addressing the custody dispute between the mother and father. All the petitions filed in 2017 were dismissed in November 2022.
The father points out that when the 2017 proceedings were commenced, none of the children resided in New York. Indeed, for a period of more than six months prior to the filing of the 2017 petitions, the children C. and A. had resided in Connecticut with the mother. According to the father, only the child M. lived in New York within the six-month period before the filing of the 2017 petitions. Indeed, in opposition to father's motion, the mother avers that all three children resided outside of New York "for about 7 years" and that when the father initiated the 2017 proceedings "the children already lived outside the state" (Affirmation in Opposition, p. 7).
Even though none of the children resided in New York at the time of commencement of the 2017 proceedings, the mother argues that New York was the children's "home state" simply because New York had issued initial custody orders in those proceedings. Her argument relies upon Domestic Relations Law § 76-a entitled "exclusive continuing jurisdiction" and caselaw holding that "[a] New York court that has previously made a child custody determination has exclusive, continuing jurisdiction" (see Sanchez v Johnson, 289 A.D.3d 1254, 1255 [2d Dept 2020]; Helmeyer v Setzer, 173 A.D.3d 740, 742 [2d Dept 2019]).
The mother's argument is flawed and circular because Domestic Relations Law § 76-a, and the caselaw interpreting it, presuppose that the New York court had initial child custody jurisdiction under Domestic Relations Law § 76 when it issued the initial custody order. In other words, under Domestic Relations Law § 76-a, a court cannot have exclusive continuing jurisdiction if it never had initial child custody jurisdiction in the first instance. Moreover, New York's exercise of initial child custody jurisdiction under Domestic Relations Law § 76 in an earlier proceeding that was subsequently dismissed does not necessarily confer jurisdiction to a later proceeding. Indeed, the statute implicitly recognizes that the child's home state may change (see Matter of Nemes v Tutino, 173 A.D.3d 16, 21 [4th Dept 2019]; Matter of Destiny EE [Karen FF.], 90 A.D.3d 1437, 1440 [3d Dept 2011]; Merril Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law §§ 76 at 458 [2010 ed]). Here, the affidavits of the mother and the father indicate that none of the children resided in New York at the time of commencement of the 2017 proceedings. However, the record is insufficient to determine how long the children were living in other states prior to commencement of the 2017 proceedings. As such, there exist triable issues of fact regarding whether New York ever had initial child custody jurisdiction in the 2017 proceedings.
However, a hearing on the issue of whether New York had initial child custody jurisdiction in the 2017 proceedings is academic; all the 2017 petitions have been dismissed on other grounds, and all the temporary orders of custody and visitation issued in those proceedings have therefore been vacated. Moreover, the issue of whether New York had initial child custody jurisdiction in 2017 does not appear to have been raised, and there is no indication in the submitted motion papers that a judicial determination on that issue was ever made. It appears that the parties acquiesced to the jurisdiction of New York, and that the New York court did not, on its own, raise a jurisdictional objection.
Regardless of any such acquiescence, initial child custody jurisdiction under Domestic Relations Law § 76 and the UCCJEA involves subject matter jurisdiction (see Hook v Snyder, 193 A.D.3d 588, 589 [1st Dept 2021]; Nemes v Tutino, 173 A.D.3d 16, 22-23 [4th Dept 2019]]). "[A] defect in subject matter jurisdiction may be raised at any time by any party or by the court itself, and subject matter jurisdiction cannot be created through waiver, estoppel, laches, or consent" (Caffrey v North Arrow Abstract & Settlement Servs., Inc., 160 A.D.3d 121 [2d Dept 2018]; see Hook v Snyder, 193 A.D.3d at 589; Nemes v Tutino, 173 A.D.3d at 23). Since the father now objects to subject matter jurisdiction, albeit belatedly, this Court has no choice but to squarely address it.
Contrary to the mother's contentions, since all the petitions filed in 2017 have been dismissed and the temporary orders vacated, the issue is not whether the court had initial child custody jurisdiction in 2017 when the parties filed those petitions, but rather whether this Court now has initial child custody jurisdiction on the petitions filed in 2022.
Domestic Relations Law § 76 provides, in pertinent part, that a court of this state has initial child custody 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, or was the "home state" of the child within six months before commencement of the proceeding and the child is absent from this state but a parent continues to live in the state; and a court of another state does not have initial child custody jurisdiction or a court of the home state has declined to exercise jurisdiction. Domestic Relations Law § 75-a(7) defines "home state" to mean, in pertinent part, the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. Here, the parties' petitions were filed in November 2022. None of the children lived in New York within the six-month period before commencement of the proceedings. Indeed, it is undisputed that the children C. and A. have been residing with the mother in New Jersey since 2019, and the child M. has, likewise, been residing outside of New York for a period of years. As such, New York is not the children's "home state" within the meaning of Domestic Relations Law § 75-a(7), and New York does not have initial child custody jurisdiction under Domestic Relations Law § 76.
Accordingly, the father's motion to dismiss the petitions for lack of subject matter jurisdiction is granted.
Inconvenient Forum Dismissal under Domestic Relations Law § 76-f
Alternatively, even if this Court had jurisdiction under the UCCJEA, it would decline to exercise it on the ground that New York is an inconvenient forum. As such the branch of the father's motion to dismiss the petitions under Domestic Relations Law § 76-f is granted.
"[D]omestic Relations Law § 76-f(1) provides that a court of this State which has jurisdiction under the UCCJEA may decline to exercise it if it finds that New York is an inconvenient forum and that a court of another state is a more appropriate forum" (Matter of Waters v Yacopino, 216 A.D.3d 1105, 1107 [2d Dept 2023]; Matter of Sanchez v Johnson, 189 A.D.3d 1254, 1255 [2d Dept 2020]; Matter of Goode v Sandoval, 171 A.D.3d 1059, 1060 [2d Dept 2019]). The issue of inconvenient forum dismissal is addressed to the Family Court's discretion after consideration of the statutory factors set forth in Domestic Relations Law § 76-f(2) including "(1) whether domestic violence or child abuse has occurred and is likely to occur in the future and which state could best protect the parties and the child; (2) the length of time the child has resided outside this State; (3) the distance between the court in this state and the court in the state that would assume jurisdiction; (4) the relative financial circumstances of the parties; (5) any agreement of the parties as to which state should assume jurisdiction; (6) the nature and location of the evidence required to resolve the pending litigation; (7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and (8) the familiarity of the court of each state with the facts and issues in the pending litigation" (Matter of Waters v Yacopino, 216 A.D.3d at 1107). "Particularly relevant to the analysis is the nature and location of evidence" (Matter of Waters v Yacopino, 216 A.D.3d at 1107; Matter of Been v Golovanoff, 169 A.D.3d 804, 806 [2d Dept 2019]). Additionally, an inconvenient forum dismissal determination "depends on the specific issue(s) to be decided in the pending litigation" (Matter of Goode v Sandoval, 171 A.D.3d at 1060; see Helmeyer v Setzer, 173 A.D.3d 740, 744 [2d Dept 2019]; Matter of Anthony B. v Priscilla B., 88 A.D.3d 590, 590 [1st Dept 2011]). "The court is required to consider the statutory factors and allow the parties to submit information regarding these factors before determining that New York is an inconvenient forum" (Matter of Goode v Sandoval, 171 A.D.3d at 1060).
Initially, given that the attorney for the child M., takes no position on the father's motion because M. will age out of the litigation before any custody hearing can be held, this Court will not include M. for purposes of considering the relevant factors for an inconvenient forum dismissal motion under Domestic Relations Law § 76-f.
Considering the first factor, the parties acknowledge that there have been allegations of domestic violence and abuse. According to the father, the only allegations pertain to M. who is about to age out of this litigation. The mother claims that the allegations also pertain to C. and A., and that the allegations arose from conduct in Brooklyn, New York. The mother also acknowledges that the children have not lived in Brooklyn for seven years. While the mother avers that the witnesses and collaterals "for this abuse are all in Kings County," she fails to identify any witnesses or give their addresses to demonstrate how New York is the more convenient forum to litigate domestic violence and abuse allegations (see e.g., Adam N v Darah D., 203 A.D.3d 583 [1st Dept 2022]). Notably, there are no pending family offense proceedings in New York, and the parties do not set forth any reason why New York could better protect the children C. and A. from abuse, especially given that both children reside in New Jersey. Consideration of this factor does not favor either retaining or declining jurisdiction.
Considering the second factor, i.e., the length of time the children have resided outside this state, both C. and A. have resided outside New York for about seven years. They have lived in New Jersey since 2019, and prior to that, they lived in Connecticut for three years. This factor weighs strongly in favor of declining jurisdiction.
Considering the third factor, the distance between the courthouse in New Jersey and the courthouse in Brooklyn, New York is about 22 miles as argued by the mother. The father argues that travel to the New Jersey courthouse only takes a half an hour but travel to Brooklyn takes anywhere between "over an hour" to two hours depending on traffic conditions. Additionally, the father emphasizes that he has a debilitating illness that leaves him bedridden and wheelchair-bound. He argues that travel to Brooklyn for trial would tax his health "to the breaking point and prevent him for participating in the trial in any meaningful way." Given that all parties live significantly closer to the New Jersey courthouse than the Brooklyn courthouse, this factor weighs in favor of declining jurisdiction.
Considering the fourth factor, i.e., the financial circumstances of the parties, the parents do not set forth their income, assets, and debts. The father, an unemployed attorney who is disabled, was deemed to have qualified for a free court-appointed lawyer. The mother, an attorney employed by a large law firm, is not represented by counsel. The parties fail to sufficiently show how consideration of their financial circumstances favors declining or retaining jurisdiction.
Considering the fifth factor, i.e., any agreement of the parties as to which state should assume jurisdiction, the parties do not submit any document evincing an agreement that New York or New Jersey should assume jurisdiction. As such, this factor does not weigh in favor of either declining or retaining jurisdiction.
Consideration of the "particularly important" sixth factor, i.e., the nature and location of the evidence required to resolve the pending litigation (Matter of Waters v Yacopino, 216 A.D.3d at 1107; Matter of Been v Golovanoff, 169 A.D.3d 804, 806 [2d Dept 2019]), favors declining jurisdiction. The children C. and A. have been living in New Jersey with their mother for four years. It is undisputed that C. and A. attend school in New Jersey. The children have not lived in New York for seven years. Notwithstanding the mother's conclusory statements to the contrary, evidence relating to the children's health, education and personal relationships is more likely to be in New Jersey than New York. Thus, consideration of this factor strongly favors declining jurisdiction.
The seventh and eighth factors concern the relative abilities of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and the familiarity of the court of each state with the facts and issues in the pending litigation. Even though the parties have been engaged in litigation in New York since 2017, it does not appear that the ultimate issues can be determined expeditiously in New York. There are currently no trial dates scheduled, and the forensic report that was completed is two years old, and arguably stale. Theoretically, the New York court has greater familiarity with the facts and issues in the pending litigation than New Jersey. However, this New York Family Court Judge has only recently been assigned this case due to a transfer of the prior judge. The prior judge was the third judge to have presided over this matter. This Judge has only conferenced this case in relation to the subject motion. Even so, considering these factors, especially that New York has a lengthy history with this case, weighs in favor of retaining jurisdiction in New York.
Another factor that must be considered, even though not specifically listed in Domestic Relations Law § 76-f, is the relationship between the children and their attorney (see Helmeyer v Setzer, 173 A.D.3d 740 [2d Dept 2019]). The children M. and A. have been represented by the same attorney for the last six years. Continuity of that representation would be preserved by retention of the case in New York (see AG v VS, 72 Misc.3d 1025 [Sup. Ct., Queens Co., 2021).
Overall, weighing all the factors, New Jersey is the more convenient forum. As such, the father's motion to dismiss the petitions under Domestic Relations Law § 76-f is granted. In the reply papers, the father attaches an exhibit evincing that litigation has already commenced in New Jersey on the issues of custody and visitation. As such, there is no need to stay proceedings in New York (see Domestic Relations Law § 76-f[3]; Matter of Waters v Yacopino, 216 A.D.3d at 1107-1108).
In light of this determination, this Court need not reach the remaining branches of the father's motion.
In sum, the father's motion to dismiss the petitions is granted.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.