Opinion
XXXXX.
Decided July 28, 2011.
Patricia Carrington, Brooklyn, NY, for Petitioner, Debi R.
Sherri Eisenpress, New York NY, for Respondent Danica P.
Petitioner Debi R. brought this proceeding against respondent Danica P., the biological mother of the subject child, Orion P., seeking an order awarding custody to petitioner.
Respondent now moves for an order dismissing the petition on the grounds that this Court lacks subject matter jurisdiction and petitioner lacks standing to bring this proceeding.
Background
Petitioner and respondent were involved in a romantic relationship from 2002 through 2009. There is no dispute that the parties shared two residences over the course of their relationship. In addition, petitioner claims that the parties shared a joint bank account.
Although respondent contends that the relationship was "turbulent," petitioner claims that she and respondent decided in 2005 that they "wanted to have a child together and raise that child together as a family."
Petitioner claims that it became clear after three years of trying to conceive that she was not going to be able to bear a child and that "[i]t was then decided that the Respondent would bear [their] child."
There is no dispute that respondent traveled to India and executed a Donor Insemination Agreement (the "Agreement") on February 26, 2009. The Agreement was prepared by the law firm of Silverstein Langer Newbuirgh McElyea and sent by e-mail to respondent after she arrived in India. Respondent signed the Agreement on her own behalf and on behalf of petitioner, who did not accompany respondent on the trip. The Agreement was also signed by S. S., the sperm donor who is identified in the Agreement as a "cousin" of petitioner, and his wife, V. S.
In the Agreement, the sperm donor and his wife stipulated "that each of them will have absolutely no parental rights whatsoever with the child." The parties further acknowledged and agreed that "DANICA and DEBI shall have absolute and complete legal and physical custody of the child" and that "DANICA and DEBI intend to raise said child together."
A separate Co-Parenting Agreement was contemporaneously sent by e-mail to respondent by the law firm, but was never apparently executed by respondent.
Respondent proceeded with the insemination and conceived. The subject child was born in Brooklyn in November of 2008.
Respondent claims that petitioner exhibited violent behavior towards her during the pregnancy, and that she asked petitioner to leave the home on or about February 2, 2009. Petitioner allegedly refused to leave.
In or about August 2009, respondent moved out of the home she had shared with petitioner. In or about September 2009, respondent moved with the child to her aunt's home in New Jersey, where she remained until the Spring or Summer of 2010, when she moved to Maine to live with her mother.
Respondent remained in Maine until on or about October 15, 2010, when respondent claims she moved to Massachusetts. Respondent has annexed documentary evidence in support of her claim that she continues to reside in Massachusetts, including an automobile insurance Endorsement containing a Massachusetts address, a voter registration Acknowledgment Notice, a Massachusetts driver license, a Massachusetts Residential Lease Agreement, and proof of enrollment in a Massachusetts health insurance program covering both respondent and the subject child. In addition, the child is allegedly enrolled in a preschool in Massachusetts.
Petitioner brought a Complaint dated September 28, 2010 against respondent in the District Court in Rockland, Maine, in which she sought to: (i) "Establish that the parties are the parents of the child(ren) listed in the Complaint"; (ii) "Determine parental rights and responsibilities for the minor child(ren) pursuant to 19-A M.R.S.A. § 1653, including child support"; and (iii) "Award reasonable attorney's fees to Plaintiff's attorney."
Respondent subsequently moved to dismiss the Complaint. By Order dated February 4, 2011, the Hon. Joseph H. Field granted the motion, finding, inter alia, that Maine was not the child's Home State since the child had not lived in Maine for six months prior to the commencement of that action. Judge Field thus dismissed petitioner's Complaint and directed that she "file an appropriate child custody action in either New York, New Jersey or Massachusetts, or any other state having home state jurisdiction within the next 30 days."
On or about March 18, 2011, petitioner filed the instant Petition for Custody.
Respondent argues that the instant Petition must be dismissed on the grounds that: (a) this Court does not have jurisdiction to adjudicate any claims for custody or visitation, because New York is not the subject child's Home State; and (b) notwithstanding the language in the Agreement that the parties intended to have "absolute and complete legal and physical custody of the child" and "to raise said child together," petitioner does not have standing to assert any claims for custody and visitation because she is a "biological stranger" to the child ( see, Debra H. V Janice R., 14 NY3d 576, rearg. denied, 15 NY3d 767) and the Agreement is unenforceable.
Discussion
Pursuant to Domestic Relations Law ("DRL") § 75-a(7),
"Home State" means 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.
DRL 76 provides, in relevant part, as follows:
1. Except as otherwise provided in section seventy-six-c of this title, a court of this state has jurisdiction to make an initial child custody determination only if:
(a) 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 the commencement of the proceeding and the child is absent from this state but a parent or other person acting as a parent continues to live in this state;
(b) a court of another state does not have jurisdiction under paragraph (a) of this subdivision, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section seventy-six-f or seventy-six-g of this title, and:
(i) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(ii) substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships.
There is no basis in this record to find that the child lived with respondent in New York State for at least six consecutive months immediately before the commencement of this proceeding. Therefore, this Court finds that New York is not the "Home State" of the subject child.
It does not, however, appear that the child lived in either New Jersey or Massachusetts for at least six months prior to the commencement of the instant proceeding. Moreover, the court in Maine has already determined that Maine is not the Home State.
No proceeding for custody and visitation has been commenced in either jurisdiction.
Therefore, it appears that no court of any other state (including the Commonwealth of Massachusetts) had jurisdiction under the criteria specified in DRL § 76(1)(a) on March 18, 2011 when the instant proceeding was commenced. See, e.g., Warshawsky v Warshawsky, 226 AD2d 708 (2nd Dep't 1996).
Petitioner argues that this Court should thus exercise jurisdiction pursuant to DRL § 76(1)(b) on the grounds that the child and the parties "have a significant connection with this state" and "substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships."
Specifically, petitioner argues that: (a) the child was born in New York and spent much of the first year of his life in this State; (b) petitioner and respondent cohabitated in New York; (c) petitioner continues to live in New York; and (d) respondent continues to maintain ties to New York.
Among other things, petitioner contends that respondent continues to promote herself as a "New York artist," maintains a membership in a food cooperative based in Kings County, and continues to be the title owner of real property in New York. In addition, petitioner claims that respondent has periodically traveled to New York with the child.
In fact, the court in Maine noted in its February 4, 2011 Order that
the child and [petitioner] have a significant connection to New York and that substantial evidence is available in New York "concerning the child's care, protection, training and personal relationships." The child resided in New York for a significant period of time and [petitioner] continues to reside there. There is also significant evidence in New Jersey concerning these issues, and New Jersey is much closer to New York than Maine.
However, the Court of Appeals has long held that
"[p]articularly relevant to the jurisdictional determination is whether the forum in which the litigation is to proceed has optimum access to relevant evidence' (Prefatory Note of Commissioners on Uniform State Laws, 9 ULA [Master Ed], § 3, p 124). Maximum rather than minimum contacts with the state are required ( id.). The general language of this subdivision permits a flexible approach to various fact patterns. This imprecision, however, must not destroy the legislative design to limit jurisdiction rather than to proliferate it' ( id.)"
Vernon v Vernon, 100 NY2d 960, 971 (2003), quoting Vanneck v Vanneck, 49 NY2d 602, 610 (1980). See also, Michael P. v Diana G., 156 AD2d 59 (1st Dep't 1990).
The Appellate Division, Second Department, has determined that
[t]he narrow language of Vanneck ( supra) and the absence of children from New York . . . compel a finding that subject matter jurisdiction did not exist because there is not "substantial evidence concerning the child's present or future care, protection, training, and personal relationships".
Steinman v Steinman, 80 AD2d 892, 893 (1981), app. dism'd, 54 NY2d 641 (1981) 893. See also, Gulyamova v Abdullaev , 53 AD3d 489 (2nd Dep't 2008); Hernandez v Collura, 113 Ad2d 750 (2nd Dep't 1985).
"[T]he absence of children from a State for 18 months is a strong indicator that there is no longer optimum access to relevant evidence' in that State." Steinman v Steinman, supra at 893-894. See also, Perkins v Perkins, 134 AD2d 416 (2nd Dep't 1987). In the instant case, the subject child has been absent from the State for over 18 months, representing a significant portion of his young life.
Based on the papers submitted and the oral argument held on the record on July 11, 2011, this Court finds that New York does not have optimum access to relevant evidence in this case concerning the child's care, protection, training, and personal relationships.
Accordingly, the instant motion to dismiss the petition for lack of jurisdiction is granted, and it is
This Court thus does not reach the issue of whether or not petitioner has standing under New York law to bring this proceeding.
ORDERED and ADJUDGED that the petition is hereby dismissed without prejudice to petitioner's right to bring a proceeding in Massachusetts, where the child has now resided with respondent for over 6 months.
This constitutes the decision and order of this Court.