This is a contested matrimonial action wherein the plaintiff, the husband, moves by order to show cause dated 6 January 2010 for the following relief: an order directing the return of the parties’ two children, A, age 7 and M, age 4, to New York State; an order awarding the husband temporary custody of the subject children; and, an order awarding the defendant, the wife, reasonable visitation with the minor children within the State of New York.
On the other hand, the wife opposes the husband’s application and cross moves by order to show cause dated 9 April 2010 for the following relief: an order dismissing the husband’s application on the basis that New York is not the home state pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act and for permission for the wife to commence a custody proceeding in California; and, an order directing the husband to pay all costs associated with Court appearances, including but not limited to transportation costs including airfare, car rentals, hotel costs, and daycare.
In opposition to the wife’s cross motion the husband moves by order to show cause dated 10 June 2010 for the following additional relief: an order directing the wife to immediately return the children at the conclusion of the 2010 school year; an order directing that the minor children reside with the husband pending the jurisdictional decision of this Court; and, an order requesting that the Superior Court of the State of California vacate any and all orders issued and to stay all proceedings now pending in California and to defer issues of support, custody and parental access to this Court. There was no assault charged.
These applications represent the second request for relief brought by the Husband.
On 17 July 2009 the husband filed two separate petitions in the New York State Family Court Kings County requesting the immediate return of the children to New York. These petitions, however, were withdrawn without prejudice by the husband prior to disposition alleging that it was his mistaken belief that the parties could resolve their differences without court intervention.
On 29 December 2009, the matrimonial action was commenced by the husband. Both the summons for divorce and the husband’s first order to show cause requested that the children be returned to New York. On 19 January 2010, the wife appeared pro se in the New York action and On 25 February 2010, the preliminary conference and the order to show cause were adjourned.
The preliminary conference was conducted and it was ordered that the issues of custody, parental access, child and spousal support, and equitable distribution were marked unresolved. The issue of jurisdiction to determine custody was unresolved.
A separate temporary order was issued which directed that the husband provide interim child support and for him to continue to pay the children’s private school tuition. It also ordered that the husband pay the lease payments on the Lexus automobile and the wife to remain responsible for the insurance, registration and operating expenses of the Lexus. The consent order provided that the children would remain with the wife in California and that the husband would have temporary access to the children in California and that he be permitted access time in New York at times and under conditions to be mutually agreed upon. The husband was provided daily phone access, and the wife agreed to withdraw without prejudice a pro se support proceeding she had filed in California. The order was without prejudice to the parties’ respective jurisdictional claims.
The criminal court issued an order directing that monies be placed in escrow to cover the costs of both an Attorney for the Children and a forensic expert. Thereafter, the Court appointed BN to represent the children. Although represented by counsel in New York, the Wife appeared pro se and filed an ex parte application in California requesting emergency relief. The Wife was granted a temporary order of sole legal and physical custody of the subject children. Also, the California court deferred to New York as the “home state”
The court scheduled a hearing on the issue of jurisdiction. In partial response to the husband’s 10 June 2010 order to show cause, he was granted interim relief by order dated 6 July 2010, which by its terms continued all interim orders and granted him additional parental access time in California with leave to enforce the order in a court of competent jurisdiction in California. The husband did not exercise his right to July visitation in California, and the children were produced by the wife in New York, as directed, to meet with their lawyer prior to the scheduled hearing and thereafter to spend time with the husband in New York.
At the hearing, the wife appeared pro se, the husband was represented by counsel and the children were represented by their attorney. Both parties testified on their own behalf. No other witnesses were called. At the conclusion of testimony the hearing was adjourned for the submission of closing statements. Both parties and the Attorney for the Children submitted statements in support of their respective positions.
The court finds these indisputable facts:
On 6 January 1999, the parties were married and have resided in an apartment owned and furnished by the maternal grandmother in New York. Out of the marriage was born two children: A born in 2003 and B 2006. Until July 2009, the children attended daycare and private nursery schools in Brooklyn, New York. Any child care providers were New York residents. Their well baby and sick medical care was also received in New York. Any social interaction was engaged in New York as well.
The husband and wife have extended family living in California, and they reside in close driving proximity to the wife. Both sets of grandparents and the husband’s two sisters live in driving distance to the wife’s apartment in California. One of the paternal aunts visits with the children and has brought them to visit their paternal grandparents. The maternal grandparents assist in providing child care for the children, and the children sleep over at their grandparents’ home once a week and are taken to school by them the following day. While the maternal grandmother owns properties in New York, neither parent has close family living in Brooklyn or elsewhere in New York City.
The husband, a dentist who is licensed to practice dentistry in both New York and California, is currently self-employed. The wife is a former medical resident now engaged as a research assistant at UCLA. At the suggestion of the wife’s mother, and to assist the wife in obtaining employment, the parties agreed to relocate to California. On 7 July 2009, the wife and children left New York and moved into an apartment in Sherman Oaks, California for which the husband signed the lease. The husband agreed to and participated in the plans to relocate, and the move reflected what the husband assumed to be their mutual decision. In particular, the husband asserted that the move reflected an economic decision to assist the wife’s efforts to find employment because she has been out of work for approximately two years.
The children were enrolled and attended private schools in California for which the husband paid in full and the Lexus automobile was shipped to California to be used by the family upon their arrival.
The husband remained in New York to earn additional income prior to joining his family. However, approximately two weeks later and prior to his leaving New York, the wife advised him that she had found someone else and did not want him to relocate to California in order to live with her and the children. She wanted a divorce.
Shortly thereafter the husband left New York for California. He stayed at his parents’ home as he was not welcome to stay with his wife and children. He remained in California for approximately six weeks in order to look for employment and attempt to reconcile with his Wife but was unable to find work as a dentist so he returned to New York. In New York, he vacated the former marital residence as it was owned by his mother-in-law, and he has since been sued for alleged arrears in unpaid rent. The furniture in the apartment belonged to his mother-in-law and was returned to her as well.
Monies that had been placed in joint bank accounts in New York had been removed by the wife in anticipation of her move to California. While the husband concurred in the decision to move the family to California, the wife’s undeclared intention was to separate from her husband and remain in California with the children.
Since July 2009 the children have lived in an apartment in California with their mother and her boyfriend, “R.” They have each attended school and/or day care in California since they left New York to which the husband consented to.
Pursuant to DRL §76(1)(b) New York has jurisdiction to make an initial custody determination if New York is the home state of the children at the time of the commencement of the proceeding or was the home state within six months prior to the commencement of the action.
The ability to obtain jurisdiction and the propriety of exercising jurisdiction are two separate issues. The Court must make two determinations: first, that jurisdiction lies under DRL §76, and second, that succeeding provisions do not preclude jurisdiction or do not mandate a declination of jurisdiction in favor of another state.
As mentioned earlier, these children have lived with both parents in New York for at least six consecutive months immediately prior to the commencement of the instant action. The divorce action was commenced 29 December 2009. Although the divorce action was timely commenced, the Court notes that the Husband had also timely filed writs of habeas corpus and custody petitions in the Family Court Kings County within a few weeks of the children’s relocation to California.
The court concludes that it does have jurisdiction to determine custody as it is the home state of the children. However under the circumstances of this case, the court must now address the California proceeding. The pendency of a proceeding in another jurisdiction does not mandate or justify dismissal. Rather, the Court must determine on the record that the foreign state is exercising jurisdiction in substantial conformity with UCCJEA. This Court is also mandated to communicate with the California court prior to determining which state’s proceeding should take precedence.
In the instant case, the wife filed an application for custody in California on 15 April 2010, approximately four months after the New York action was commenced. The California petition does not specify that there is a custody proceeding pending in New York. In response to the Wife’s California application, the court exercised “temporary emergency jurisdiction” and awarded the Wife temporary sole custody pursuant to California Family Code 3424.
In deferring to this Court to determine jurisdiction, the California court stated that the determination was “without prejudice to Petitioner’s presentation of any evidence that bears on the issue of jurisdiction or on whether California is a more convenient forum.”
In order for this Court to determine if New York is an inconvenient forum, the Court must address the delineated factors set forth in DRL §76-f.
In analyzing the facts as testified to by the parties the Court finds that there are no child protective issues and no domestic violence. The children have resided in California for one year on the consent of the husband. He also withdrew without prejudice his application for a writ of habeas corpus which if heard would have addressed the children’s removal from the jurisdiction prior to their attendance in school and possible acclimation to their new home.
The distance between the two courts is 2,787 miles. The Husband testified that he understood that it was less costly for one party to travel to California than for three to travel to New York. The Court also finds that Husband’s compliance with the court directives for payment of legal fees for his children has not been consistent.
Neither party agreed to which state should have jurisdiction. While the husband agreed to the children’s move, he was unaware that his wife did not want him to move with them. While he continued to assert that New York had jurisdiction to determine custody, he withdrew his Family Court writs and consented to the children remaining in California during the school year.
The court notes that one year is significant in the lives of these very young children and all current and relevant information is now in California. The children would need to be interviewed and observed by the court appointed forensic evaluator and would need to appear for an in camera hearing.
There is every indication that each court has the ability to decide the issues expeditiously the Court is assured that the statutory scheme in California provides all the procedures necessary to present evidence on the issue of custody. The California court has the most current report on behalf of the subject children. Upon receipt of this decision and order and the accompanying transcript both courts will have sufficient familiarity with the facts and issues in the pending litigation. BN will remain the Attorney for the Children for the limited purpose of providing any information to the lawyer appointed to represent the children in California and will thereafter be relieved.
Considering the above factors, the Court concludes that New York is an inconvenient forum and that Californian is a more appropriate forum to determine the issue of custody.
There is no dispute that New York has jurisdiction to address all the remaining ancillary issues in the matrimonial action and the Wife will have to address those issues before this Court by complying with court ordered discovery, appearing for compliance and pre-trial conferences and if not resolved, appearing for trial at such dates and times as the Court sets. While declining to exercise custody jurisdiction the Court still retains jurisdiction over the divorce.
Accordingly, at the conclusion of the children’s visit with the husband in New York, the children are to return with the wife to California to commence school. The pendente lite order of support is to remain in effect pending conclusion of the parenting issues before the California court.
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