Opinion
V-XXXXX-17
09-06-2017
J.A., Petitioner, v. J.M.G., A.Q.R., Respondents.
On February 6, 2017, fifteen-year-old A.'s paternal grandmother J. A. filed a petition for her custody. The child had been living in Virginia with her mother. The child's father is currently incarcerated in New York.In her petition, Ms. A., who lives in Brooklyn, stated that it would be in the child's best interest for custody to be granted to her because
the child was assaulted by the respondent [mother]'s boyfriend prior to the respondent giving the child to the [petitioner]. [Petitioner] states that the respondent has been verbally abusive towards the child. [Petitioner] states the respondent has given the child to her twice before and has then taken the child back at income tax season. [Petitioner]
just wants a stable home for the child. [Petitioner] states that the child has been given to multiple people throughout her life.Petition, Docket # V-XXXXX-17. On the same day, JHO Ross entered an ex parte temporary order of custody on behalf of the petitioner grandmother.
On March 8, 2017, petitioner grandmother filed a family offense petition on behalf of A. against her mother, J. G. In that petition, the grandmother alleged that
Respondent [mother] text her and her grandchild threatening to take the child out of her home, send her to California and she will never be seen again. Petitioner states in January the respondent allowed child to be physically abused by someone living in her home. The child fled the home and called her [the petitioner] and the police was called. Petitioner states the respondent put the child out of the home and gave her custody of the child. Petitioner is requesting an order keeping the respondent away from her, her grandchild, their home and to not harass them.Petition, Docket # O-XXXXX-17. An ex parte order of protection ordering the respondent mother to stay away from the child and the grandmother was issued on that day. The petitioner grandmother was found eligible for assigned counsel and an 18-b attorney was assigned to her on March 8, 2017. After these orders were entered by JHO Ross, both cases were adjourned for return of process to this court part.
Both petitioner and the respondent mother appeared before this court on April 24, 2017. The respondent mother appeared with retained counsel. The respondent mother's attorney stated that he was filing a motion to dismiss the petitions. An attorney for the child was assigned and the matter adjourned to June 26, 2017. On June 26, 2017, the attorney for the child appeared. She stated that the child informed her that she had spent summers with her paternal grandmother and had lived with her from February to May in 2009. She also said that because of the incident in January, the child did not feel safe in her mother's home and was afraid to return. She stated, however, that the child was willing to visit with her mother in Virginia if the mother's boyfriend was excluded from the home.
The mother's attorney asserted that the mother denied most of the allegations asserted by the petitioner grandmother and the child: he said that the mother was not home when the incident occurred and that the mother's boyfriend did not live in the home. The court continued the temporary order of custody to the petitioner grandmother, but also issued an order that the mother was to have parenting time with the child in the mother's home in Virginia commencing July 1, 2017, and that the mother's boyfriend was excluded from her home during the time of the child's return.
Counsel for the mother filed the motion to dismiss the paternal grandmother's petitions. Although counsel for the grandmother and the attorney for the child both requested additional time to respond to respondent mother's motion to dismiss, only the attorney for the child submitted papers in response to the motion to dismiss. Counsel for the paternal grandmother did not submit papers.
The respondent mother's motion to dismiss argues that New York does not have jurisdiction as the child had lived in Virginia since 2005. It further argues that New York is an inconvenient forum and jurisdiction should be declined on that basis. (Affirmation of Jaye Ballard dated April 24, 2017 at ¶¶ 5-19.) In addition, the motion argues that there has been no showing of extraordinary circumstances warranting interference with the mother's superior right to custody.
According to the attorney for the child, the child reported to her that the mother's boyfriend had lived in the mother's home for the past year. She described an incident that occurred in January 2017 in which, in response to the child telling him that he could not hit her, the mother's boyfriend slapped her, pushed her, and started to choke her. To defend herself, the child started punching the boyfriend, and when her mother came into the room, he finally let go of her throat. The child was crying, and wanted to leave the home. She said that her mother told her that if she left, she should not return. The child went to a friend's home and called her paternal grandmother who said she was welcome to come live with her in New York. The child then called the police, but when the police responded, they said they could not determine who was the aggressor in the incident. She said that her mother called the paternal grandmother and told her to come to Virginia to pick up the child, and the child left with her when she came. In addition, the child reported to her attorney that her mother had also hit her in the past, thrown objects at her, threatened her, and yelled at her. (Affirmation of Diana Aragundi dated August 4, 2017 at ¶¶ 18-20.)
Annexed to the response papers of the attorney for the child is a notarized statement signed by Ms. G. on January 27, 2017 which states:
This letter serves as affirmation that I am placing my daughter, . . . in the custody and care of her paternal grandmother, [J.A.] as of 1/28/2017 for an indefinite period of time. [The child] will reside with her grandmother as of that date and attend school in the district in which her grandmother resides. She is to be in her total care. Should there be any questions or concerns, please feel free to contact me . . . as I am her mother and custodial parent within right to provide this authorization. All medical treatment is to be decided by and provided by her grandmother.Exhibit A annexed to Affirmation in Opposition submitted by Diana Aragundi.
In the affidavit in support by Ms. G., the respondent mother, annexed to the motion to dismiss, Ms. G. acknowledges that she sent the child to live with her paternal grandmother in New York while she "contemplated what the long-term strategy would be consistent with [the child]'s best interest" and that she signed a document temporarily placing the child in her grandmother's custody (Affirmation of J.G. at 21, 23.)However, Ms. G. otherwise disputes much else of what the child reported. While Ms. G. admits being in the home when the January incident occurred between the child and the mother's "boyfriend/father of my youngest child," she stated that she was not involved in or present for the incident. She also denies that the boyfriend/father of her youngest child resides in her home. (Affidavit of J. G. dated April 21, 2017 at ¶¶ 17-18.) She asserts that she has "always maintained a close and loving relationship with" the child, and that she is not aware of "any incidents involving [the child] that would cause me to fear for her mental, emotional, or physical well-being." (Affirmation of J.G. at ¶ 11, 16.)
In both the mother's affidavit, and in the affirmation of the attorney for the child, it is reported that the child has not visited with her mother subsequent to the court order which allowed visitation beginning on July 1, 2017. According to Ms. G., her attempts to re-establish contact with the child have been met with "confusing hostility." (Affirmation of G. at ¶ 26.) According to the attorney for the child, the child informed her that she was afraid to return to her mother's home. When the attorney for the child informed the mother's and grandmother's attorneys of this, she said that the mother agreed not to force the child to return home, but that she would visit with the child in New York on the weekends. It appears that there were many communication problems and, by the time of the submission of her papers, the child and her mother had not seen each other. (Affirmation of Aragundi at ¶¶ 26-33.)
Finally, in her affidavit, Ms. G. states that she has been employed in Virginia since 2005 and that litigating this case in New York would "jeopardize my employment," and that she does "not have the means to afford the financial burden associated with litigating this case in New York." (Affidavit of J.G. at ¶ ¶ 31-32.)
On August 31, 2017, the mother's attorney and the child's attorney appeared to argue the motion. The attorney for the grandmother did not appear. A colleague of his appeared and stated that the attorney for the grandmother had gotten the date wrong, was not available, and asked for an adjournment. The court heard argument from the mother's attorney and the attorney for the child. The attorney for the child informed the court at that time that the child had been missing from her grandmother's home since August 4, 2017. The attorney for the mother stated that the child had not returned to the mother's home in Virginia and that the mother had not previously been informed that the child was missing. The attorney for the child reported that she was in contact with a New York City detective who was investigating the disappearance of the child.
LEGAL DISCUSSION
At the time the petitioner grandmother filed her 2017 custody and family offense petitions in New York, New York was not the home state of the child as the child had been living in Virginia since 2005 and had only been in New York for less than two months. D.R.L. § 75-a (7). However, the child was physically present in New York and the allegations that she had been abused in Virginia and was at risk of harm if returned there established that New York had temporary emergency jurisdiction. D.R.L. § 76-c (1) ("A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child, a sibling or parent of the child.")
Although the mother claims that New York does not have jurisdiction because it is not the home state of the child, it is puzzling that the mother has not commenced any proceedings in a Virginia court. As of now, more than six months since the child came to New York to stay with her grandmother, the only court proceeding is the custody and family offense proceeding commenced by her grandmother. Pursuant to D.R.L. §76-c (2), if there is no previous child custody determination that is entitled to be enforced, and a child custody proceeding has not been commenced in a court of a state having jurisdiction, a custody determination made under temporary emergency jurisdiction remains in effect until the court of a state having jurisdiction has taken steps to assure the protection of the child. Moreover, if a child custody proceeding has not been or is not commenced in a state having jurisdiction, a child custody determination made under this section becomes a final determination and this state becomes the home state of the child. Id.
In the instant case, there are allegations that the child was abused in her mother's home and that she is at risk of further abuse if she returns. No proceeding which could protect the child has been commenced in Virginia, which was the child's home state when she left. There is no previous child custody determination that is entitled to be enforced. Thus, in the absence of any proceeding in another state that would have jurisdiction, under D.R.L. §76-c (2), New York, which originally exercised emergency jurisdiction, has now become the home state of the child. Under D.R.L. §76-c (2), this court retains jurisdiction, and the motion to dismiss the petitions on that ground is denied. §76-c (2); See Rodriguez v. Rodriguez, 118 AD3d 1011 (2d Dept. 2014) (reversing family court's determination that Florida was proper venue where there was a prima facie showing that child would be in imminent risk of harm if returned to father in Florida); Santiago v. Riley, 79 AD3d 1045 (2d Dept. 2010) (reversing family court's dismissal of family offense proceeding where children were present in New York and, although there was also a proceeding commenced in Delaware, family court failed to determine whether it should continue to exercise emergency jurisdiction because it was necessary to protect the child); see also Tin Tin v. Thar Kyi, 92 AD3d 1293, 1294 (4th Dept. 2012) ("Although emergency jurisdiction is generally temporary, the court was authorized to make a permanent custody award because no other custody proceeding had been instituted in a competing forum and New York had become the children's home state following commencement of the proceeding. . . .").
Given that the child has left the grandmother's home and a missing person investigation has been commenced in New York, retaining jurisdiction in New York is all the more compelling. --------
Having determined that the court retains jurisdiction over the matter, the question remains as to whether it should exercise that jurisdiction or decline it as an inconvenient forum. Pursuant to D.R.L. § 76-f, a court which has jurisdiction to make a child custody determination may decline to exercise its jurisdiction if it determines that it is an inconvenient forum. In making such a determination, that court shall allow the parties to submit information and shall consider all 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;D.R.L. § 76-f (2).
(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 the 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;
(h) the familiarity of the court of each state with the facts and issue in the issues in the pending litigation.
Information as to the above factors has been submitted by the respondent mother and the attorney for the child in their papers. Considering all the factors listed above, the court determines that New York should retain jurisdiction. There are allegations of mistreatment and abuse of the child in the home in Virginia and allegations that it could continue in the future. Until the allegations are fleshed out at a hearing, the child is best protected by remaining in this state. Although the child has resided outside this state for a lengthy period of time, she retained ties to this state by visiting with her grandmother every summer, for several months during the year in 2009, and she has now been here, and been attending school in New York for more than six months. The distance between the court in this state and a court in Virginia is substantial, but it can traversed by car.
The mother states that forcing her to litigate this matter in New York would pose an undue financial burden on her. While the court is sympathetic to the financial burdens posed by having her litigate in New York, the grandmother would be similarly burdened by having to litigate the matter in Virginia. Indeed, the mother appears to be in a superior financial position to the grandmother, as she has retained a lawyer for this matter, and the grandmother was assigned 18-b counsel because she could not afford to hire her own.
Although the mother contends that the evidence required to resolve the litigation is in Virginia, in reality, it is the child's statements and potential testimony that is most relevant, and the child is now residing in New York. As the First Department noted in a similar case when it found that New York was not an inconvenient forum although the events which formed the basis of the petition occurred in Virginia,
We note in particular that this case involves allegations that the children were subject to violence, mistreatment and abuse by the mother's husband . . . Furthermore, much of the evidence underlying the allegations of the petition — particularly the testimony of the children — is located in New York . . . and, to the extent that such proof or evidence relating to the best interests of the daughter is available in Virginia, this evidence may be submitted by way of, among other things, depositions or testimony "by telephone, audiovisual means, or other electronic means" (Domestic Relations Law § 75-j [2]).Belcher v. Lawrence, 98 AD3d 197, 202 (1st Dept. 2012). See also Blerim M. v. Racquel M., 41 AD3d 306 (1st Dept. 2007) (reversing court's determination to decline jurisdiction in New York because child had resided in North Carolina for more than six months, witnesses to the corporal punishment were the children themselves who were in New York at the time, and witnesses outside of New York could testify by alternate means).
In this case as well, the child is the source of the allegations about her mistreatment and abuse and she is in New York. To the extent that there are other witnesses in Virginia, alternate means for obtaining their testimony can be made available if it is too financially difficult for them to appear in New York.
With respect to the ability of the court of each state to decide the issues expeditiously and the procedures necessary to present the evidence, there has been no showing of the ability of a court in Virginia to decide the issues expeditiously or of its procedures, as no proceeding has been brought in Virginia. Indeed, to decline jurisdiction and hold this case in abeyance for a period of time to see whether a case is commenced in Virginia would only cause further delay in determining the issues. In addition, there is no agreement among the parties as to which state should assume jurisdiction.
Finally, there is no court in Virginia that has any familiarity with the issues as there is no proceeding pending in Virginia and there were no prior family court proceedings there. It is worth noting in this context that an attorney for the child has been assigned and has been representing the child since April of this year. If the case is dismissed in New York and goes forward in Virginia, the child would have to be assigned a new attorney/guardian ad litem for those proceedings. Va. Code Ann. § 16.1-266 (West) ("Prior to the hearing by the court of any case involving a child who is alleged to be abused or neglected or who is the subject of an entrustment agreement or a petition seeking termination of residual parental rights or who is otherwise before the court pursuant to subdivision A 4 of § 16.1-241 or § 63.2-1230, the court shall appoint a discreet and competent attorney-at-law as guardian ad litem to represent the child pursuant to § 16.1-266.1"). Having established a relationship with her attorney in New York, it would now be difficult, if not detrimental to the child's ability to deal with this litigation, to require her to establish a relationship with a new attorney in Virginia, and to have to consult with that attorney from New York.
The factors set forth in D.R.L. § 76-f (2) thus weigh heavily in favor of retaining jurisdiction in New York under the circumstances of this case. See Mojica v. Denson, 120 AD3d 691 (2d Dept. 2014) (reversing family court's determination to decline jurisdiction as consideration of the statutory factors supported conclusion that New York not an inconvenient forum). The motion to dismiss based on inconvenient forum is therefore also denied. The motion is denied without prejudice, however, if circumstances — including the location of the child — change.
Finally, the mother argues that she has a superior right to the child absent a showing of extraordinary circumstances, which she claims has not been made here. The underlying facts in this case are hotly disputed; there are allegations that the child has spent a considerable amount of time with her grandmother, and the mother's intent in informally giving custody to the grandmother is apparently also at issue. Thus, the question of extraordinary circumstances is a factual one which must await a hearing. The grandmother's petitions cannot be dismissed as insufficient on their face.
The petitioner's motion is denied.
Notify parties and counsel. Dated: September 6, 2017 ____________________________ Honorable Judith Waksberg Judge, Family Court