Opinion
File No. 39222
02-22-2022
MOHAMMED N., Petitioner, v. NUSRAT N., Respondent.
Scott P. Benjamin for petitioner. Eric O. Thorsen for respondent. Candice Whatley, Attorney for the Child.
Scott P. Benjamin for petitioner.
Eric O. Thorsen for respondent.
Candice Whatley, Attorney for the Child.
Rachel Tanguay, J.
On December 29, 2021, Petitioner ("Father") filed an emergency Order to Show Cause with this Court seeking inter alia : (1) to register an Order relating to custody of his child issues by a Court in Bangladesh with this Court pursuant to D.R.L. § 77-g ; (2) to require Respondent ("Mother") to appear before this Court with the subject child; (3) to hold the Mother in contempt for failing to following the Order from Bangladesh, including enforcing the terms of that Order. The Court signed the OTSC and directed personal service of the application upon the Mother.
Both parties appeared before this Court on January 4, 2022 in connection with these matters, in that the Mother's attorney appeared and requested that the Mother's appearance be waived for that particular date. Mother's counsel indicated that he intended to file his own application for custody and for an order of protection. The Court set a motion schedule for submission of opposing and reply papers, and recognizing that there would likely be a need for a factual evidentiary hearing, it scheduled such hearing for February 18, 2022. The Court received additional submissions from both parties as well as the Attorney for the Child ("AFC"), and with the lengthy nature of the submissions and variety of legal arguments proffered, it became evident to the Court that there was need to focus all parties on the distinct legal issues before the Court so that an evidentiary hearing would be narrowly tailored to address the contested issues of fact relating to the jurisdictional issues only. To that end, the Court convened an off-the-record attorneys only conference on February 15, 2022 to discuss the Court's view of the legal issues presented in this case: that the Court would first need to resolve the threshold legal question of whether the Order from Bangladesh constituted an "Initial Custody Determination" within the meaning of D.R.L. § 75. If the Court answered that question in the affirmative, the Court would have to determine what, if any, factual issues required a hearing so that the Court could properly address the Mother's objections to the registration of that Order with this Court, as well as the Mother's claims that even if Bangladesh had jurisdiction, that New York should exercise emergency temporary jurisdiction amidst allegations of domestic violence at the hands of the Father. If the Court answered that initial question in the negative, then it would have to determine what, if any, factual issues required a hearing so that the Court could determine legally whether New York should be the home state for purposes of an initial custody determination.
On January 11, 2022 Mother filed a Notice of Cross-Motion seeking: (1) dismissal of the Father's application; (2) a declaration by this Court that New York is the home state for purposes of issuing an Initial Child Custody Determination; and (3) custody of the parties’ minor child. Mother also filed a Family Offense Petition, which was heard by the Court Attorney Referee. He issued a temporary order of protection on behalf of the Mother and child directing the Father to stay away from them, their home, to refrain from communication with both of them, as well as protective paragraph.
The Court converted the February 18, 2022 appearance from a hearing date to a conference date for purposes of the parties offering oral argument on the specific legal issues presented as noted above. Specifically, the Court asked the parties to focus on the threshold question of whether the Order from Bangladesh was an "Initial Custody Determination", and then to offer arguments supporting their client's positions depending on whether the Court answered that question in the affirmative or negative. Plus, the Court asked both parties to offer brief argument about the alleged time line of how the parties came to the United States and what happened once they got here, with it being uncontroverted that the Father returned to Bangladesh without the Mother and the minor child.
On February 18, 2022, the Court heard more than one and a half hours of oral argument on these issues. Counsel were all extremely well-prepared, for which the Court is grateful. They offered several statutory and case law citations for their positions and each made impassioned and cogent arguments for their clients. We all agreed that there was no case law on point for the issues presented in this case, particularly whether the unique language of the Order of Bangladesh is in fact an "initial custody determination". Thus, the Court listened carefully to the arguments of counsel, had done its own preliminary research prior to February 18th, and then followed up on Counsel's research in making some preliminary determinations in this case.
Domestic Relations Law § 75-a(3), in relevant part, states: "Child custody determination means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. ...." (Ellipses and emphasis added)(internal quotation marks omitted). "Initial determination means the first child custody determination concerning a particular child." Id. at subsection (8). The certified translation of the Order from Bangladesh reads as follows, in pertinent part:
Mohammed N. (Father) vs. Nusrat N. (Mother)
Custody of the minor child of the Plaintiff name namely Numair N.(subject child)
that the suit be decreed ex parte. The opposite party is directed to hand over the asked for child ... to the plaintiff within 40 days from the order, failing which the plaintiff may get custody of the child through the court in accordingly (sic) with the law. From the fact it is provide that the defendant took away the minor son of the plaintiff from custody of the plaintiff and captive the minor son in New York, USA, Where (sic) here present address is (omitted).
A copy of this order should be sent to the foreign ministry to take necessary steps to get the custody of the minor child.
(Ellipses and parentheses added).
Mother's Counsel argues that this Order is not an initial custody determination, likening this Order to an order a Court in New York would issue in connection with an application pursuant to D.R.L. § 70(a) seeking Habeas Corpus. That statute states:
Where a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court ; and on the return thereof,
the court, on due consideration, may award the natural guardianship, charge and custody of such child to either parent for such time , under such regulations and restrictions, and with such provisions and directions, as the case may require, and may at any time thereafter vacate or modify such order. In all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the
child, and what will best promote its welfare and happiness, and make award accordingly.
(Emphases added).
Mother claims that the statutory authority of the Court in connection with those applications is to bring the body before the Court until an order of a custody determination can be made, so the order itself directing production of a child is not itself an initial custody determination. While that is a compelling argument, the Court notes that the language in the Order from Bangladesh directs production of the child to a parent , not production of the child to the Court. The Court in Bangladesh appears to have made an initial ex parte determination that the Mother "took away the minor son of the plaintiff from custody of the [Father] and captive the minor son in New York", (brackets added), and in part based its Order directing what appears to be temporary physical custody of the child to the Father on that preliminary finding.
The Mother also cites Matter of R.L.Bxxxxx v. C.D.Gxxx , 63 Misc. 3d 806, 98 N.Y.S.3d 385 (Fam. Ct. Kings Co. 2019) in support of her claim that even where a custody matter is commenced in one state, where no order of custody is issued, that state does not retain continuing, exclusive jurisdiction. While the Court found this case instructive, the main distinction between this case and instant case is that this Court has an Order from Bangladesh. In R.L.Bxxxxx , New Jersey had initial jurisdiction arguably by accepting the custody filing, but it never issued any orders. Accordingly, when New York also accepted the filing for custody and determined that a parent and child had lived in New York for more than six consecutive months, the prior action in New Jersey, which did not culminate in an order, did not serve as an impediment to New York taking jurisdiction under the UCCJEA.
Counsel for the Father cites M. v. Nassau County Dep't of Social Services , 58 A.D.2d 111, 395 N.Y.S.2d 666 (2d Dept. 1977) and Matter of Melinda D. , 31 A.D.3d 24, 815 N.Y.S.2d 644 (2d Dept. 2006) in support of his contention that initiating a case by Habeas Corpus proceedings in New York is considered an appropriate vehicle for initiating a custody determination, even if preliminarily, by the Court. In Kassim v. Al-Maliki , 194 A.D.3d 719, 143 N.Y.S.3d 585 (2d Dept. 2021), a recent Second Department case, the Court discussed a trial court decision to dismiss a Habeas Corpus petition upon the finding that it lacked subject matter jurisdiction over the issues of custody. The Appellate Division concluded that the trial court erred in its dismissal without having a hearing determine whether New York or Yemen was the home state for purposes of making an initial custody determination. Relevant to the instant case is the appellate court's conclusion that the filing a Habeas Corpus petition was essentially akin to the filing of a custody petition, with questions of jurisdiction under the UCCJEA having to be properly resolved before the trial court could take action.
The Court also notes Scott v. Jackson, 38 A.D.3d 788, 832 N.Y.S.2d 611 (2d Dept. 2007) in its search for guidance in which a New York Court determined that it did not have subject matter jurisdiction under the UCCJEA when a parent and child had resided in Connecticut for several years leading up the litigation. The father in that case argued that because the New York courts had issued an order of protection under Article 8 of the Family Court Act, that such an order conferred continuing, exclusive jurisdiction on New York with respect to custody issues. The New York courts disagreed. Unfortunately, the opinion is silent on whether the orders of protection awarded any form of a custody of a child, which the Court can do temporarily in an Article 8 proceeding. Arguably, if it had, then the New York Court may have in fact assumed jurisdiction by that order of protection being an initial custody determination, but the Court cannot glean those facts from the published decision.
In looking at the language of the Order from Bangladesh, it was issued in connection with some form of custody proceeding brought by the Father, and it directed the Mother to provide the child to the Father within 40 days of the Order. This Court must conclude that this Order constitutes an initial custody determination under D.R.L. § 75-a(8), even though this Order is admittedly issued on an ex parte basis. Whether the Mother had proper notice of the proceedings, a contention that she vehemently disputes, is a separate issue relevant to her Objection to the application to register that Order in New York. While the Order does appear to be akin to a Habeas Corpus order that would be issued by a New York court, reviewing D.R.L. § 70 and the case law cited by the Father's attorney, this Court concludes that such an order constitutes an initial custody determination, conferring temporary, initial relief for a party on the issues of custody. Even temporary and initial relief, it is relates to physical custody (such as in this case) or legal custody, meets the requirements for an initial custody determination under D.R.L. § 75-a(8). See Sabrina F. v. Louis F. , 22 Misc. 3d 1132(A), 881 N.Y.S.2d 366 (Fam. Ct. Bronx Co. 2009) (holding that Florida's temporary order relating to custody constituted a valid custody determination despite the parties having previously obtained a final order of custody from Ohio, but where neither parent continued to reside in Ohio and where the Mother had filed a Habeas Corpus proceeding in New York).
With the Court having concluded that the Order from Bangladesh is an initial custody determination, the Court must now decide whether the Order can be registered here in New York and therefore enforced, as requested by the Father. The Mother objects to the registration, raising valid claims such as she was not given proper notice of the underlying proceedings. She avers that the Father knew she was residing in New York, an allegation seemingly supported by the Bangladeshi finding in its Order that she was residing in Pomona, New York, yet service was allegedly perfected upon her by serving process on an address in Bangladesh. The Court will need to take testimony on the factual circumstances surrounding the filing of and service of process of the Bangladeshi proceedings in order for the Court consider the claims raised by the Mother in connection with D.R.L. § 77-d(4). See Pava v. Atkinson , 180 A.D.3d 917, 116 N.Y.S.3d 614 (2d Dept. 2020). The Mother timely requested a hearing on those issues, so the Court will convene a hearing forthwith to address her claims, particularly those relating to D.R.L. § 77-d(4)(c).
Moreover, this Court is required to communicate with the Court in Bangladesh as regards these simultaneous proceedings. See D.R.L. §§ 75-I and 76-e ; see also John B. v. Talia K , 2021 N.Y. Slip Op. 21329, 74 Misc.3d 396, 160 N.Y.S.3d 544 (Fam. Ct. Monroe Co. 2021). The Court will need to create a record of those communications and may invite parties and counsel to participate. Given the language and time zone challenges in communication between New York and Bangladesh, the Court will endeavor to find a time that works for both jurists to hold this statutorily required communication and will notify the parties and attorneys once it is scheduled. The Court reserves decision on whether it will offer all parties and counsel an opportunity to be present or whether it will convene a conference on the record between the two jurists and make the record available.
The AFC, as well as the Mother, have also asked for this Court to exercise its emergency powers under D.R.L. § 76-c if it were to determine that Bangladesh has subject matter jurisdiction over the custody issues in this case. At the evidentiary hearing before this Court which will be convened forthwith, this Court will take testimony from the parties about these allegations of abuse to determine if there is an "imminent risk of harm" to the Mother or child as set forth in D.R.L. § 76-c(3). Under subdivision (4) of that statute, this Court is required to "immediately communicate with the other court", meaning Bangladesh, to coordinate the actions. Thus, this Court will convene a conference between the two courts, as noted above, and this Court will also inform the Bangladeshi Court that the Mother has lodged claims of abuse here for which an expedited hearing will be held; the Court will also inform the Court in Bangladesh about the family offense proceedings and the current temporary order of protection against the Father which could potentially complicate any possible immediate enforcement of the Order from Bangladesh. Clearly, if after a hearing, this Court becomes convinced that the Mother's alleged flight related to being the victim of domestic violence at the hands of the Father, the Court will have to seriously consider exercising its emergency powers. Callahan v. Smith , 23 A.D.3d 957, 958, 805 N.Y.S.2d 157, 158 (3d Dept. 2005) (stating, "[T]he legislative history of the Uniform Child Custody Jurisdiction and Enforcement Act makes clear that the expansion of the statute to include danger to a parent is reflective of an increased awareness and understanding of domestic violence")(brackets added)(internal quotation marks and citations omitted). Following the conclusion of the expedited factual and evidentiary hearing, this Court will determine whether (1) the Order should be registered in New York and thus enforced, and (2) whether New York should exercise temporary emergency jurisdiction to protect the child or a parent. The Court will communicate with the Court in Bangladesh to resolve the emergency if it decides to exercise such emergency jurisdiction.