Opinion
V-15116-08.
Decided March 3, 2009.
Respondent father Louis F. moves to vacate this court's July 3, 2008 Certification of Registration of Out-of-State Order of Custody or Visitation (the "registration") of a custody and visitation order issued in Ohio. The issue is whether a temporary order of custody constitutes a "modification" under the Uniform Child Custody and Jurisdiction Act ("UCCJEA"), Domestic Relations Law, Article 5A. For reasons set forth below, the motion to vacate is granted.
Mr. F. and Ms. F. are parents of a son and daughter, ages 18 and 16 respectively. The parties were married and divorced in Ohio pursuant to a judgment incorporating a separation agreement, with custody of the children to Ms. F., entered in the Court of Common Pleas in Ohio in October, 1994. Mr F. relocated to Florida in 1997 and Ms. F. and the children moved to the Bronx in 2003. In December of 2007 their daughter left the Bronx for the Father's Florida home where she has remained.
The son Anthony resides in the Bronx with his mother and turned 18 on January 3, 2009. The Florida Temporary Order of custody does not address custody of Anthony. Nevertheless, neither party addresses registration of the Ohio judgment with regard to Anthony.
On May 9, 2008, Ms. F filed a petition in Bronx Family Court for custody of Jessica by Writ of Habeas Corpus.
Mr. F. filed a petition for temporary custody of his daughter in Broward County alleging domestic violence in the maternal home in the Bronx. He was represented by counsel. Ms. F. was present telephonically at a hearing on June 2, 2008 in Broward County. Ms. F. was not represented and consented to father's temporary order of custody Jessica. The Florida court issued an order on June 3, 2008 granting Mr. F.'s motion for a temporary order of custody until a determination of jurisdiction is made pursuant to UCCJEA.
On June 6, 2008, the return date on Ms. F's petition in the Bronx, the court dismissed the Writ in light of the Florida order.
On July 3, 2008, Ms. F. filed an affidavit application for registration of an out of state custody and visitation order and the clerk of the court issued a certification of registration. DRL § 77-d provides:
(1) A child custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement, by sending to the appropriate court in this state . . .
(b) two copies, including one certified copy, of the determination sought to be registered, and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration the order has not been modified . . . In her July 3, 2008 affidavit, Ms. F. swore to the best of her knowledge and belief that the order she sought to register was in effect and had not been stayed or modified. At the time Ms. F. swore the Ohio order was in effect and had not been modified, the child at issue was residing with Mr. F. pursuant to the Florida court order. On the basis of Ms. F.'s sworn statement, the clerk of the court issued the certification of registration. Mr. F. filed an objection on July 21, 2008.
On August 27, 2008, Mr. F. filed the Ohio judgment for registration in Florida.
As a threshold matter, the Ohio order was registered in New York on July 3, 2008. While Mr. F.'s motion to vacate the registration was not filed until late in September, court records confirm that he filed an objection to the registration with the court on July 21, 2008, within the permissible limits imposed by DRL § 77-d(4). Thus, Mr. F.'s motion for vacatur of the registration is timely.
Mr. F. seeks vacatur of the July 3, 2008 registration pursuant to DRL § 77-d which provides:
4. A person seeking to contest the validity of a registered order must request a hearing within twenty days after service of the notice. At that hearing, the court shall confirm the registered order unless the person contesting the registration establishes that . .
(b) the child custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so under title two of this article.
Mr. F. argues that since the Florida court has modified the Ohio judgment, if the Ohio judgment were registered in New York without registration of the Florida determination, Mr. F. would be precluded from contesting enforcement of the Ohio order in the New York court. Ms. F. asserts that she seeks only to register the Ohio judgment in New York and that there is no pending application for either modification or enforcement of the Ohio order and therefore no basis for vacatur. Implicitly, she argues that the Florida temporary order of custody does not constitute a modification.
"Modification" is defined by the UCCJEA § 75-a as
(11) a child custody determination that changes, replaces, supersedes, or is otherwise made after a pervious determination concerning the same child, whether or not it is made by the court that made the previous determination. (emphasis added).
Pursuant to DRL § 75-a, a child custody determination means (3) 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. The term does not include an order relating to child support or other monetary obligation of an individual. (emphasis added).
The Florida temporary order of custody constitutes a child custody determination. Clearly, it changes, supersedes, and was made after the Ohio order and concerns the same child, albeit temporarily, within the meaning of DRL § 77-d(4)(b). Temporary orders are explicitly included, qualify for UCCJEA enforcement mechanisms, and entitle the issuing court to exclusive, continuing jurisdiction while the temporary order remains in effect. Sobie, Practice Commentaries, DRL § 75-a, 14 McKinneys 2008 Cumulative Pocket Part, p. 90. See eg., In re Noel D. v Gladys D., 6 Misc 3d 1017 (A) (Family Ct, Queens County, 2005) (NY temporary order granted under emergency jurisdiction of UCCJEA "modified" an Illinois temporary order of custody to father where marriage dissolved on default but court reserved decision on custody). There is no dispute that the Florida court properly exercised emergency jurisdiction to issue the temporary order of custody.
Finding that a temporary order of custody constitutes a modification is also consistent with the legislative intent. In enacting the UCCJEA it was the intent of the New York Legislature, as stated in DRL § 75 (2), to
UCCJEA replaced the Uniform Child Custody Act ("UCCJA") as of April 28, 2002. Laws 2001, ch 386, § 2.
provide an effective mechanism to obtain and enforce orders of custody and visitation across state lines and to do so in a manner that ensures that the safety of the children is paramount and that victims of domestic violence and child abuse are protected.
That purpose would be frustrated by registration of the Ohio order in New York, since a temporary order is in effect in Florida.
Accordingly it is
ORDERED that the motion to vacate the Certification of Registration of Out-of-State Order of Custody or Visitation of the Ohio order is granted and the case is dismissed.
This constitutes the decision and order of this court.