Opinion
2008/9430
11-01-2016
Chad M. Rahn, Plaintiff, v. Stephanie Rahn, Defendant.
Juan Nevarez, Esq. Rochester, New York Attorney for Plaintiff Christopher Mattingly, Esq. Buffalo, New York Attorney for Defendant Gary Muldoon, Esq. Rochester, New York Attorney for Children
Juan Nevarez, Esq. Rochester, New York Attorney for Plaintiff Christopher Mattingly, Esq. Buffalo, New York Attorney for Defendant Gary Muldoon, Esq. Rochester, New York Attorney for Children Richard A. Dollinger, J.
The defendant/mother in this child custody/ post-divorce matter seeks to dismiss the plaintiff/father's motion, arguing that this court should decline jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), because the children have not resided in New York for more than three years. The mother also argues that New York, given the extended absence of the children, is an inconvenient forum and that the father has engaged in "unjustifiable conduct" sufficient for this court to relinquish jurisdiction.
The jumbled background to the current dispute deserves some attention. This couple entered a separation agreement in 2009. The agreement included a provision for joint custody, a schedule of visitation, and a provision that the mother, the primary residential parent, could not move more than 40 miles away from the father without notifying him and renegotiating the terms of the visitation and residence. It is undisputed that the mother, after execution of the agreement, moved more than 40 miles away to South Carolina without the father's permission. In prior proceedings, this court, determined that the father, by not objecting to the move to another state at the time of its occurrence and failing to demand renegotiation of custody/residence, and thereafter engaging in visitation with his children in the other state, had ratified the mother's move and waived any objection to it. In October 2015, when the wife failed to abide by court ordered visitation, this court held the mother in contempt, imposed a fine for violation of the agreement and fines for contempt of court, and issued an order for the mother's arrest. The court advised the parties that the arrest warrant would be held for seven days to allow compliance with the order. The father never asked, until this proceeding, for the release of the arrest warrant. The mother has refused to return to this court and has refused to return the children to Monroe County.
While the agreement was dated in 2009, the judgment of divorce was not entered until 2015.
There is also evidence in this record that the wife was awarded at least temporary custody of the children by a South Carolina court.
The arrest warrant was withheld by the court, assuming the wife would comply with the court orders. There is no evidence that she has complied. At oral argument, the father's counsel requested release of the arrest warrant and this court granted that oral motion. Upon presentation of such a warrant, the court will execute it and return it to father's counsel.
In the midst of all of these proceedings, the father filed a petition, seeking a change of custody, a decree that he should be the primary residential parent, and other relief. The mother moves to dismiss the pending application under the UCCJEA. The court appointed counsel for the father. In addition, the court had previously appointed an attorney for the children, who has steadfastly maintained that the couple's three infant children, ranging in ages from 10 - 15, have no desire to live with their father, wish to remain in Virginia where their mother has remarried and currently resides, and have no desire to have any contact with their father. Because the father challenged the children's preference as being unduly influenced or tainted by their mother, this court, with the approval of all parties, interviewed the couple's 15-year-old daughter in camera. This court advised the parties thereafter that the attorney for the children was advocating his clients' legal positions and preference in accordance with the law. However, this court also concluded that a hearing should be held on the father's application to change custody and primary residence based on his allegation that the mother's conduct, in refusing to abide by court orders, constituted a prima facie claim for a substantial change of circumstances. In response to the mother's motion to dismiss for lack of jurisdiction under the UCCJEA, the father argues that this court has an obligation to enforce its orders and, based on the circumstances present in this case, this court can - and should - grant a default order of custody because the mother has failed to appear before the court and otherwise engaged in contemptuous conduct. The father agues that the mother has wilfully excluded the father from the children's lives and hence, he is entitled to a change in custody.
The mother's counsel original motion to dismiss was filed in February 2016, alleging that the father's petition failed to set forth a prima facie case for a change in circumstances. The court never reached that issue because the father brought a proceeding before another Supreme Court justice, seeking to remove this court and dismiss the AFC. That petition was dismissed in July 2016. In August 2016, the father filed essentially the same application in the Appellate Division, Fourth Department, seeking the same relief, but his order to show cause was never signed. When this court scheduled a hearing for the father's petition, the mother brought a supplemental order to show cause, which again argued that this court lacked jurisdiction under the UCCJEA.
This court acknowledges that among the circumstances to be considered in a modification of custody are the wishes of the child, but the child's desires are not dispositive. Eschbach v. Eschbach, 56 NY2d 167 (1982).
Initially, this court must determine whether it has any jurisdictional basis to hear this matter. Section 76 of the Domestic Relations Law grants this court jurisdiction "to make an initial child custody determination" if on the date of the commencement of the proceeding New York was "the home state" of the children at that time or six months before. DRL § 76. The attorney for the children, in seeking dismissal of this proceeding, argues that the father's application for a change in custody is a separate "proceeding" and that the language of subdivision (a) of Section 76 precludes an exercise of jurisdiction because New York is no longer "the home state" of the children. This argument, however, ignores that the prefatory language of Section 76 which suggests that a "home state" finding is only required if the court was seeking to make "an initial child custody determination." Id. This court made an initial custody determination in the judgment of divorce, which was filed in 2015. The court's jurisdiction to make that determination was never challenged. Therefore, the provisions of Section 76-a, governing "continuing jurisdiction" apply here. DRL § 76-a.
However, before determining the issue of whether the court, which had initial jurisdiction, should continue to exercise it, this court elects to review the father's application for intervention at this stage because he seeks relief in the form of an immediate change of custody order without a hearing. The New York courts have generally frowned on default in custody matters and have favored resolution on the merits. Matter of Brice v Lee, 134 AD3d 1106 (2nd Dept. 2015) (the law favors resolution on the merits in child custody proceedings). In Di Fiore v. Scott, 2 AD3d 1417 (4th Dept. 2003), the court noted that "an existing custodial arrangement should not be changed merely because of changes in marital status, economic circumstances or improvements in moral or psychological adjustment, at least so long as the custodial parent has not been shown to be unfit, or perhaps less fit, to continue as the proper custodian." In this case, the father, while claiming that the mother has impeded visitation, has presented no allegations that the mother is an unfit parent. Father's counsel cites Kruszczynski v. Charlap, 124 AD2d 1073 (4tje Dept. 1986) suggesting that the court may order a change in custody by default, and this court does not dispute that, but it is not pertinent here. The wife has not defaulted in the current petition. She appeared by counsel and brought an application to dismiss the petition, which constitutes an appearance in the action. CPLR 320 (a). The defendant is not required to answer the petition until 10 days after entry of an order on the dismissal motion.CPLR 3211 (f). Thus, while the mother has refused to comply with the earlier orders, she has not defaulted in responding to the father's current petition.
The father also argues that the mother's conduct justifies a change in custody without a further hearing. In the two cases cited by the plaintiff in support of this proposition, the change in custody only occurred after a hearing. See e. g., McTighe v. Pearl, 8 AD3d 951 (4th Dept. 2004) (finding after a hearing that a parent's repeated attempts to sabotage parent-child relationship was sufficient to change custody). In Gorsky v. Gorsky, 148 AD2d 674 (2nd Dept. 1989), (a change of custody was granted after the wife failed to appear at the hearing). The plaintiff also cites Vernon v. Vernon, 100 NY2d 960 (2003). In that matter, the Court of Appeals affirmed that the New York courts had jurisdiction over a child, who had primarily resided in Wyoming for nine years. However, there was a hearing in that case, testimony from a forensic psychologist in support of changing custody, and detailed witness testimony in support of the change. The objecting wife did not appear. Based on the proof at the hearing, the court changed custody. Furthermore, in Vernon v. Vernon, there was undisputed proof of a "substantial connection" with New York, premised on the fact that the child had visited the father in New York for summers and vacations; and the court could not ignore the forensic psychologist who stated that the mother had engaged in ongoing and relentless alienation and was incapable of taking the necessary steps to encourage the child to visit her father.
In interpreting this aspect of the Court of Appeals opinion in Vernon v. Vernon, this court is cognizant of the general rule that custodial parent's interference with a child's relationship with the non-custodial parent is "so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as custodial parent." Matter of Carleo v Pluchinotta, 138 AD3d 833 (2nd Dept. 2016), citing Vernon v. Vernon. Nonetheless, several factors easily distinguish this case from the Court of Appeals holding in Vernon v. Vernon. First, the mother has not failed to appear - instead, she has moved to dismiss the petition and avoid the hearing in New York that would follow. Second, because no hearing has yet occurred, there is no direct evidence - no expert analysis or other evidence - that proves the mother has alienated the children. Third, while the father alleges a series of actions by the mother that violate the prior orders of this court, there is no evidence that a change in custody would be in the children's best interests. Because of this pleading distinction and the fact that the change in custody in all of these occurred after a hearing, the court declines to follow the plaintiff's suggested line of cases and grant a change in custody by default.
In the absence of any determination on the father's claims, this court turns to the wife's motion to dismiss. Pursuant to the UCCJEA, codified in Article 5-A of the Domestic Relations Law, a court in this state which has made an initial custody determination has exclusive continuing jurisdiction over that determination until it finds, as is relevant here, that it should relinquish jurisdiction because the children do not have a "significant connection" with New York, and "substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships." DRL § 76-a [1] [a]; Matter of Miller v Shaw, 123 AD3d 1131 (2nd Dept. 2014); Matter of Mojica v Denson, 120 AD3d 691, 692, (2nd Dept. 2014). In this case, it is undisputed that the initial child custody determination was rendered in New York. However, the evidence establishes that none of the children have visited New York in the last several years, with the exception of the 15-year-old daughter's attendance at the in camera hearing requested by the court. The father argues that the "significant connection" is evidenced by his extended family's residence in New York. That undisputed fact, standing alone, does justify a finding of a "significant connection" sufficient to justify an exercise of jurisdiction. The children have not returned to New York in more than three years. The children attend school in Virginia and have spent their summers there. While this court finds undisputed evidence that the father's large extended family resides in New York, there is no evidence that the children have a current "significant connection" with New York.
If the mere presence of a parent's extended family created the "significant connection," then the home state of the parent would almost always have a claim to jurisdiction, a notion contrary to the obvious intention of the UCCJEA.
There is also no evidence in the record before this court that there is "substantial evidence" available in New York concerning the care, protection, training, and personal relationships between the father and his children. DRL § 76-a [1] [a]. The children are currently under the care of their mother in Virginia. There is no evidence before this court that they are anything, but safe and well-cared for. There is no evidence of any failings in school or any other difficulties for the children in living in Virginia. The school records, home environment, developmental records and personal lives of the children are set in Virginia. There is also evidence, conveyed through the AFC and the court's interview with the 15-year-old daughter, that the children strongly oppose any relocation of their primary residence to New York. Furthermore, any evidence central to establishing the grounds for a change in custody or primary residence, simply "is no longer available in New York." Matter of Wnorowska v Wnorowski, 76 AD3d 714 (2nd Dept. 2010). For these reasons, while this court had original jurisdiction, the UCCJEA directs that this court should relinquish that jurisdiction to the Commonwealth of Virginia.
Even if this court concluded that it had continuing jurisdiction, it may nonetheless decline to exercise such jurisdiction "if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum." DRL § 76-f [1]. Here, consideration of the statutory factors set forth in DRL § 76-f (2) demonstrates that New York is not the more convenient forum. The statutory factors, applied to this matter, reveal:
(a)There is no evidence that domestic violence or mistreatment or abuse of a child or sibling by the mother has occurred or is likely to occur in the future. There are allegations, made by the father, that the mother has engaged in criminal acts directed at him, but other than the arrest warrant issued previously by this court for non-compliance with prior court orders, there is no evidence of any criminal charges against the mother relating to her conduct with the children. In addition, because the prevention of any such violence would require immediate intervention by authorities, Virginia, where the children currently reside, is in the best position to protect the children.
(b)The children have resided outside New York for more than three years, a factor that weighs in favor of finding New York an inconvenient forum.
(c)The distance between the courts in New York and the courts in Virginia is not substantial: either party would be able to travel eight to ten hours by car to appear in the courts. From this court's point of view, distance, as defined in the statute, is not a substantial factor in this analysis.
(d)There is no evidence of the relative financial circumstances of the parties. The mother has retained private counsel. This court approved the appointment of counsel for the father. There are no up-to-date statements of net worth filed by either party. The father alleges that the mother has remarried a physician who has large assets and income, but there is no proof before the court to support that conjecture. There is no evidence that the cost of litigating this matter in New York would be more or less expensive than in Virginia. Based on the proof before this court, the court declines to draw any inference for or against either party.
(e)This court has reviewed the numerous submissions by the father in the various proceedings before this court, but based on the record before the court on this motion, this court cannot find any evidence that the original separation agreement gave the New York court exclusive jurisdiction over any disputes that arose over the custody or primary residence of the children. In the absence of those facts, this court cannot conclude that the parties expressed a preference, at any time, over whether New York would have exclusive jurisdiction over this current application.
Surprisingly, to the court, the presence of a "continuing jurisdiction" clause in the separation agreement, even if extant in this instance, would not be a decisive factor. In Vernon v. Vernon, 100 NY2d 960 (2003), the Court of Appeals, at the conclusion of its analysis under the UCCJEA, noted - almost casually - that the couple's agreement had provided that the New York courts would retain jurisdiction over the case "for all purposes." However, the court did not rely on that fact in reaching its conclusion.
(f)The nature and location of the evidence required to resolve the pending litigation, including testimony of the child, clearly favors allowing Virginia to have jurisdiction over this matter and militates against New York exercising jurisdiction. The children live in Virginia, have not visited New York for more than a year and their medical and school records are in Virginia. If a forensic evaluation of the relationship between the children and their parents is required, that evaluation should be conducted in Virginia to prevent the children from being brought to New York State solely to be examined in this case. The testimony of other officials - teachers, pediatricians, therapists, neighbors, friends of the children - which might bear on the best interests of the children or their relationship with either parent is based in Virginia. The father has not identified any witnesses in New York who would testify to the current condition of the children. The father suggests that his parents would be witnesses and the court does not doubt that they would testify to the importance of their relationship with their grandchildren and the father's extended family, but there is no evidence that this testimony, offered in Virginia, would more costly to achieve or entitled to less weight. It would be a significant advantage for the children to be represented by an attorney located in the state where they currently reside and communication would be facilitated by such an arrangement. A.A. v A.A., 48 Misc 3d 1224 (A) (Fam. Ct. Kings Cty. 2015); Paderno v. Shvetsova, 96 AD3d 762 (2nd Dept. 2012).
(g)In regard to the ability of this court to decide the issue expeditiously and the procedures necessary to present the evidence, this court is confident that it can hear and decide this case. But, in all likelihood, the hearing will consume several non-consecutive days and the children may be required to attend individual in camera discussions with the court. The witnesses from Virginia, who have had constant contact with the children for several years, would be required to testify. The court notes that the father, in his prior applications to the court, has sought to introduce records from court proceedings and criminal proceedings from Virginia and other states. The fact that these out-of-state officials, mostly from Virginia, might be presented as witnesses or that documentary evidence from outside New York might be offered at trial suggests that a state familiar with such documents should adjudicate their admission in a child custody proceeding. Furthermore, while this court has the option of allowing certain testimony to be given telephonically or through video, that procedure is not appropriate for every witness and this is particularly true in a child custody and visitation case where the court's decision is largely determined by its assessment of the credibility of the parties and their witnesses. A.A. v A.A., 48 Misc 3d 1224 (A), surpa at p. 9; Haughton v. Tsang, 118 AD3d 883 (2nd Dept. 2014). Because credibility of witnesses may be important, the court in its discretion may decline to allow evidence to be submitted electronically. Desroches v. Desroches, 70 AD3d 686 (2nd Dept. 2010).
(h)As a final factor, this court must consider the familiarity of the court of each state with the facts and issues in the pending litigation. There is no question that this court is very familiar with the many issues in this matter. This court has overseen these disputes and issued, as both parties concede, numerous orders, findings of contempt and orders requiring the mother to facilitate visitation between the father and the children. The court has held an in camera interview with the couple's 15-year-old daughter. This court has signed subpoenas for the presentation of witnesses. This court has communicated with a number of attorneys who, at various times, have represented the father. However, these New York-based facts involve procedural issues related to the processing of the various petitions and applications made by the father and are largely irrelevant to the only real questions presented by this case.
The "real question" - in this court's view - centers on the best interests of the children and those facts are almost exclusively in Virginia, where the children have lived and, by one child's own account, are thriving. These issues, when the detritus of years of acrimony are swept away, are also relatively simple: (a) what are the best interests of these children and would those interests be best served by altering the custody and primary residence of the children; and, (b) whether the mother has alienated the children from their father and, if so, what remedy should be invoked? In that regard, many facts are undisputed: the father has not had any visitation or any form of contact with his children for more than a year, the children are safe and advancing in Virginia, the wife, as set forth in prior decisions of this court, has repeatedly refused to comply with other orders of the New York courts. The most pressing allegations against the wife — that she has alienated the children from their father — involve her conduct outside New York State, either in South Carolina, where she first moved, or in Virginia, where she currently resides. Any first-hand witnesses to this "alienation conduct" are unlikely to reside in New York.
In that regard, the father, by his own admission, enjoyed a period of visitation with his children after his ex-wife moved to South Carolina and, on one occasion stayed in his ex-wife's house with his children after the divorce. The supposed alienation by the ex-wife, according to the father, occurred after this visit and hence all the "alienating conduct" has occurred outside New York State. There is no evidence that any witness to such "alienating conduct" resides in New York.
In this court's view, the undisputed facts, when presented to a Virginia court, can be easily sorted out and the Virginia courts, which have undisputed jurisdiction over the mother and children by virtue of their permanent residence in that state, can decide what remedies, if any, should be imposed against the mother and what access the father should have to his children. New York is, under this analysis, an inconvenient forum and this matter should be decided in the children's home state of Virginia.
As an alternate basis for dismissal, the mother argues that the father has engaged in "unjustified conduct" that would strip New York of jurisdiction. DRL § 76-g [1]). The allegations against the father - bringing motions in various courts to obtain access to his children and allegedly failing to participate in a telephone conversation with one of his children and the alleged existence of an order of protection in Virginia or South Carolina — are insufficient to have this court decline jurisdiction. Valji v Valji, 130 AD3d 404 (1st Dept. 2015)
The wife's motion to dismiss based on the UCCJEA is granted, but the order granting such dismissal shall be stayed for 30 days from the issuance of this decision on the condition that: (A)the wife's New York counsel shall accept service on the wife's behalf of a petition for a change of custody and primary residence properly filed in the appropriate offices of the Commonwealth of Virginia by the father; (B)such service shall occur within 30 days of the filing of this order and shall be by regular mail to the office of the wife's New York counsel; and, (C)that the wife shall waive any objection to the service of Virginia petition and shall waive any objections to the jurisdiction of the courts of the Commonwealth of Virginia over matters involving the couple's children and the father's rights of access to them.
SUBMIT ORDER ON NOTICE. Dated: November 1, 2016_____________________________________ Richard A. Dollinger, A.J.S.C.