Opinion
164291
11-07-2011
In the Matter of Proceeding for Custody under Article 6 of the Family Court Act or Section 240 of the Domestic Relations Law Serihy M., Petitioner, v. Olena O.M., Respondent.
Olena O.M. attorney: Alexander Barakh, Esq. Erricco & Barakh, LLC Serihy M. attorney: Robert Litwack, Esq. Attorney for the Child: Kathleen Waterman Children's Law Center
Olena O.M. attorney: Alexander Barakh, Esq. Erricco & Barakh, LLC
Serihy M. attorney: Robert Litwack, Esq.
Attorney for the Child: Kathleen Waterman Children's Law Center
Ingrid Joseph, J.
Upon the foregoing papers, the Respondent-Mother moves to dismiss the Petitioner-Father's petition for custody of the parties' daughter based upon lack of subject matter jurisdiction pursuant to Civil Practice Law and Rules 3211(2) and forum non-conveniens.
The parties were married in the Ukraine and resided there when their daughter was born on May 6, 1997. In 1998, the father moved to New York to seek employment opportunities while the mother and daughter remained in the Ukraine. The family lived apart over the next ten years except for brief periods of time, in March 2007 and January 2008, when the family attempted to live together in the father's Brooklyn apartment. The mother returned to the Ukraine with the child after the second attempt at reunification failed. The parties were divorced in the Ukraine on March 26, 2008. That same year, the mother relocated to New Jersey to work as a nanny and left the then 11-year-old child in the Ukraine under the care and guidance of the maternal grandfather and aunt. Since 2008 the child has visited the United States for limited periods of time but has resided in the Ukraine where she presently attends school.
On August 23, 2010, this court issued a Writ in response to the father's petition for a Writ of Habeas Corpus, ordering that the mother produce the parties' daughter in Kings Family Court on August 31, 2010. The mother appeared without the child on said date with itinerary information showing that the child had returned to the Ukraine. On August 31, 2010, the court issued another order that the child be produced at the Children's Law Center on January 3, 2011 to meet with the person who had been assigned as her attorney and that the father pay for the child's round trip ticket from Kiev, Ukraine to New York. On September 20, 2010, the father filed a petition for custody in this court and, on November 2, 2010, the mother filed a cross-petition for custody.
In October 2010, the mother filed a complaint akin to a petition for custody in the Ukraine at Ternopil Municipal District Court (referred to interchangeably as "Ternopil Court" and "Court"), requesting that the Court determine the child's place of residence. The Ternopil Court held a hearing while the parties' petitions were pending in this court. A party from the Children Affairs Department of Ternopil City Council ("Ukraine Children Affairs") as well as representatives for the mother and father appeared at the Ternopil Court proceeding. The Court indicated that each party was given an opportunity to be heard and that the representative from the Ukraine Children Affairs recommended that the child's place of residence be with the mother in Ternopil City. The Court's summary of the father's position [based on the translated copy provided to the court], as posed by his representative, is as follows:
"The representative of the defendant [father] at the court session found out the statement of claim partially, did not object the determination place of residence of the child together with the plaintiff [mother], however until the child is 14 years old" (Mother's motion, exh. C - as translated).
Additionally, the Ternopil Court indicated that the recommended place of residence, which is where the child currently resides in the Ukraine, was investigated and found to be appropriate. The Court also obtained information about whether the parents participated in the child's studies and school activities and determined that the mother attended parent meetings and was actively involved but that the father had never visited the child's school or taken an interest in her studies. The Ternopil Court stated that in determining the place of residence of the child, it also took into consideration the child's age and personal sympathy toward each parent. After weighing all of the factors, the Court agreed with the Ukraine Children Affairs recommendation and opined that the subject child's place of residence would be with the mother at vul. Lypova 10, kv 41 in Ternopil City, Ukraine.
The father's representative appealed the decision and requested that the Ukraine Court of Appeals (referred to interchangeably as "Appellate Court" and "Board of Judges") address two issues. The first issue pertained to the relevancy of the Ternopil Court's decision after the subject child reaches 14 years of age and the second issue related to the authority, or lack thereof, of the Ternopil Court to specify the child's exact address. The father annexed a translated copy of the Appellate Court's decision to his opposition papers. A review of that decision reveals that the Appellate Court concluded that the Ternopil Court did not go beyond the scope of the mother's complaint when it determined the exact address of the parties' daughter. With respect to the place of residence issue, the Board of Judges explained that pursuant to Article 161 of the Family Code of Ukraine, the Children Affairs Department is cloaked with the authority to determine place of residence of a child under the age of 14 whose parents reside separately and cannot agree with which parent the child should reside. The Appellate Court explained further that in keeping with Article 160 of the Family Code of Ukraine, the subject child can decide with which parent she wants to live when she reaches 14 years of age and it acknowledged that the parties' daughter would be 14 years old within two months of the date of its decision. The Appellate Court also indicated that it was aware that the mother had been living and working in the United States and that the parties' daughter was living in the Ukraine without either parent. Nevertheless, the Appellate Court, by order dated March 10, 2011, affirmed the Ternopil Court's decision that the child's place of residence is to be at vul. Lypova 10, kv 41 in Ternopil City, Ukraine.
Armed with favorable decisions from the Ukrainian courts, the mother now moves to dismiss the father's petition based upon lack of subject matter jurisdiction, or, alternatively, on forum non-conveniens grounds. The mother contends that the Ternopil Court has continuing exclusive jurisdiction because it already issued a child custody determination and thus, New York lacks jurisdiction to determine custody or even modify the Ternopil Court's decision. The mother maintains that the Capobianco v. Willis, 171 AD2d 834 [2d Dept 1991] case and The Federal Parental Kidnaping Prevention Act (PKPA)(28 USC § 1738A) support her position regarding the limits of this court's jurisdiction. The mother argues further that pursuant to Domestic Relations Law § 76-f, even if this court found a basis to exercise jurisdiction, it should decline to do so because New York is an inconvenient forum under the circumstances of this case.
While the attorney for the child did not submit a written response to the mother's motion, she argued vehemently during oral argument, on behalf of the child, that jurisdiction is lacking because her client currently resides and has always resided in the Ukraine and was not in New York six months prior to the father's filing of the petition for custody.
The father acknowledges that his daughter was not in New York for the requisite six month period at the time of filing but maintains that jurisdiction exists, because the child has no "home state" since she has resided in the Ukraine without either parent since 2008. The father asserts that the children in the Matter of Rivera v Santiago, 174 Misc 2d 255 [Fam. Ct. Orange Cty 1997] and Matter of Consford v Consford, 271 AD2d 106 [3d Dept 2000] cases did not live in New York either, but, in both cases, the courts' exercise of jurisdiction was proper. Additionally, the father argues that he was under a false impression that the mother had been living continuously with their daughter in the Ukraine but later learned that the mother relocated to New Jersey and left the child behind to live with the maternal family. The father maintains that the false impression that he was under in this case is similar to the false pretense that existed in the John M. v. Teresa M., 30 Misc 3d 1220(A)[Fam. Ct. Kings Cty 2011] case. The father reasons that this court should find that his false impression establishes a jurisdictional predicate for the same reasons espoused in the John M. case regarding false pretenses. Furthermore, the father maintains that the Ukraine decisions should not be recognized, because the Ternopil Court made no attempt to communicate with this court to address the fact that the father had already commenced a custody action for the same child in New York. In further support of that proposition, the father disputes that he was given an opportunity to be heard at the Ukraine proceeding. According to the father, the case took place in the Ukraine without either party's physical appearance but pursuant to "powers of attorney." Finally, the father contends that this court should exercise jurisdiction, because the Ukraine courts' place of residence determination is a cursory assignment that expired on the child's 14th birthday (May 6, 2011).
The issue before the court is two-fold: whether the court can exercise jurisdiction when the Ukraine courts have already made a child custody determination, and whether jurisdiction is proper when the child for whom custody is sought resides in the Ukraine and her parents in different states in the United States.
Civil Practice Law and Rules § 3211(a)(2) provides that a party may move for judgment dismissing one or more causes of action asserted against him on the ground that the court lacks the subject matter jurisdiction to adjudicate the cause of action.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), as codified under Article 5-A of New York Domestic Relations Law (DRL) governs jurisdiction issues that are raised within the context of a child custody dispute. The UCCJEA's international provision (DRL § 75-d) provides that a court of this state shall treat a foreign country as if it were a state of the United States [for purposes of applying other provisions of the act] and its child custody determination must be recognized and enforced if (1) the determination was made under factual circumstances in substantial conformity with the jurisdictional standards set forth in DRL § 75-g, and (2) the child custody law of the foreign country as written or applied does not violate fundamental principles of human rights. Section 75-g provides for service in accordance with Civil Practice Law and Rules § 313; by return receipt mail; pursuant to the law of the state in which service is made if outside New York; or in a manner directed by the court, including publication, if service is otherwise impracticable. The jurisdictional provisions of the act do not automatically apply to jurisdictional conflicts between a state of the United States and a foreign country (DRL § 75-d; compare EB v EFB, 7 Misc 3d 423 [Sup. Ct. Kings Cty 2005] with Matter of Karen W. v Roger S., 8 Misc 3d 285 [Fam. Ct. Dutchess Cty 2004]). Therefore, the court will first address whether the Ukraine should be treated as if it were a state of the United States before applying the subject matter jurisdiction rules set forth in the UCCJEA.
The two-prong test in Section 75-d requires that the court ascertain first, whether Ukraine's child custody laws violate fundamental principles of human rights and second, whether the father was properly noticed and given an opportunity to be heard at the custody proceeding that was held in that country. The court finds that Ukraine's family law jurisprudence, as described by those courts in the decisions provided to the court by the parties, differs from our own but there is no indication that the laws, as written or as applied, violate fundamental principles of human rights. Regarding the due process rights of the father, the court notes that neither party proffered evidence regarding service of process or how the Ternopil Court came to exercise personal jurisdiction over the father to adjudicate the custody dispute. The parties' respective affidavits are devoid of any information pertaining to the manner of service used or how issue was joined in that action. The Ternopil Court and Ukraine Court of Appeals decisions indicate that the father and mother were represented at the custody proceeding, but neither party has provided the court with information regarding the contact or working relationship, if any, that they had with their respective representatives. Thus, the court is without sufficient evidence to determine whether the Ukraine child custody determination was made under factual circumstances in substantial conformity with the notice provisions outlined in Section 75-g above. Consequently, the court cannot determine whether the Ukraine should be treated like a state of the United States for purposes of applying the jurisdictional rules outlined in the act.
Assuming arguendo that the court determined that the Ternopil Court satisfied the threshold criteria for the Ukraine to be treated like a state of the United States, this court finds that jurisdiction is lacking in this case. Under the UCCJEA, subject matter jurisdiction to adjudicate a child custody dispute exists when the forum in which the litigation is to proceed is the child's home state (DRL § 75-d). "Home state" means the state in which the 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 § 75-a, subd. 7). A person acting as a parent is a person who has physical custody of the child and who has been awarded legal custody by a court or claims a right to legal custody (DRL § 75-a, subd. 13).
This case fails to pass muster under the "home state" analysis, because the subject child did not reside in New York but in the Ukraine six months prior to the father's filing of the petition for custody in this court. Contrary to the father's contentions, the fact that the child lives in the Ukraine and not in New York, where he resides, or New Jersey, where the mother resides, is not an automatic prescription for a finding that the child has no "home state." In keeping with the "home state" definition, the subject child's home state would be the Ukraine if her mother or the maternal grandfather and aunt claim a right to legal custody.
The court disagrees with the father's assertion that the John M. v Teresa M., 30 Misc 3d 1220(A)[NY Fam. Ct. 2011] case is analogous to the case at bar. In John M., the mother resided in California, the father in New York, and the children were moved by the mother to Wisconsin were they resided with their maternal grandparents. The John M. parents were divorced but had joint legal custody and were operating under a parenting plan that gave the father preference to care for the children over a third-party if the mother was unable to take care of them. Nevertheless, at some point, the mother unilaterally designated her parents as the children's temporary legal guardians. The John M. court found that the mother violated the terms of the parenting plan and joint custodial arrangement and lacked the authority to unilaterally move the children to live with her parents in Wisconsin. The court explained that the children's wrongful presence in Wisconsin could not give rise to subject matter jurisdiction in that state and as a consequence, the court found that the John M. children had no home state. The parties in this case are divorced, and, unlike the John M. parents, there is no indication that a parenting plan exists or that the issue of custody was addressed within the context of the Ukraine-based divorce. Furthermore, there is no indication that the mother in this case is precluded by order or any other legal instrument from designating the maternal grandfather and aunt as the child's temporary legal guardians while she works in New Jersey.
Additionally, the court finds that the parties location in different states and the child's location in a different country actually militate against the exercise of jurisdiction on best interest grounds. A court may exercise jurisdiction on best interest grounds when (1) the child and parents, or at least the child and one parent, have a significant connection with the state, and (2) there is substantial evidence available within the state concerning the child's care, protection, training, and personal relationships ((DRL § 76-b). Jurisdiction existed in the John M. as well as the Rivera v Santiago, 174 Misc 2d 255 [Fam. Ct. Orange Cty 1997] and Consford v Consford, 271 AD2d106 [3d Dept 2000] cases, because the children in those cases had substantial connections with New York. The subject child has no such connections with New York. She was born in the Ukraine, has lived there practically all of her life, and has matriculated in school in that country. Consequently, there is no evidence in New York concerning her care, protection, training, and personal relationships.
Based upon the foregoing, the court finds that the court lacks subject matter jurisdiction to adjudicate the instant child custody dispute. The parties remaining contentions are either moot or without merit.
Accordingly, it is hereby ORDERED, that the respondent-mother's motion is granted and the parties' petitions for custody are dismissed without prejudice.
This constitutes the Decision and Order of the court.
_______________________________
Hon. Ingrid Joseph