On 2 August 1999, this proceeding was commenced by the filing of an order to show cause. The petitioner is seeking a modification of a custodial visitation schedule established as a result of a stipulation of settlement subsequently incorporated but not merged into a judgment of divorce dated 13 September 1995 in the Rockland County Supreme Court. A New York Family Lawyer said the respondent has filed an affirmation in opposition and an attorney’s affirmation in which the issue of this court’s jurisdiction to hear the matter is raised. The respondent claims that the home State for the child is New Jersey and, therefore, this court is without jurisdiction to proceed.
The Law Guardian for the child has submitted a reply affirmation in which she takes the position that this court does have jurisdiction. On 23 August 1999, the petitioner submitted an affidavit in response to the respondent’s answer together with a memorandum of law. On 26 August 1999, the respondent filed a reply affirmation.
A New York Custody Lawyer said the facts in this proceeding are not in significant dispute. The parties have joint custody of A who is now almost 10 years of age. A resides with B in Lincoln Park, New Jersey, during the week, as well as the first weekend of every month during the school year. She splits summer vacation and alternates other vacations and holidays with her parents. In addition, the child has a Wednesday visitation with her mother from 6:00 P.M. to 8:00 P.M. The parties have joint legal custody.
On 23 September 1998, A moved with her father to New Jersey prior to living in Rockland. On or about July 1999, the respondent advised the petitioner that he would be moving from Lincoln Park, New Jersey, to Belle Meade, New Jersey, in September of 1999, and that A would have to change schools. For several years A has been attending the St. Anthony’s School in Nanuet, New York. She continued with this schooling even after she relocated to New Jersey in September of 1998.
A Queens Family Lawyer said that according to the affirmation from the Law Guardian, A has been seeing a therapist in Rockland County, New York for approximately four years and is still seeing that therapist. The petitioner mother has family in Rockland County with whom the child has a relationship.
In April of 1998, the then petitioner, B, filed a petition seeking permission of the court to relocate with A to Bucks County, Pennsylvania. The application was denied for the reasons set forth therein. Shortly thereafter, to wit, in September of 1998, the then petitioner, B, relocated to New Jersey but to a location far closer to Rockland County than he had requested in his application to move to Bucks County, Pennsylvania. He continued the child in the St. Anthony’s School during the school year 1998/1999.
A Queens Custody Lawyer said the issue presented before the court is whether under these facts the State of New York have jurisdiction to proceed to hear and determine the instant petition. For the purpose of deciding this issue the court assumes, based upon the factual information presented to it, that the child and at least her mother have a significant connection with the State of New York and that there is within the jurisdiction of the court substantial evidence concerning the child’s present or future care, protection, training and personal relationships. Therefore, for the purpose of deciding this application the court is assuming that it is in the best interests of the child for a court of this State to assume jurisdiction. Respondent shall have the right, if he chooses, to contest this issue and have a hearing thereon since the court has not had the ability to conduct a hearing and make factual findings regarding that question. However, in order to decide the instant application, the court must make the foregoing assumption.
Another issue before this court is where another State, New Jersey, is the home State of the child, does New York have jurisdiction to modify a prior order of a New York court provided one of the contestants continues to reside in New York.
Upon a review of the case law of the State of New York, it appears that the Appellate Divisions are not in agreement as to what the answer to this question is and, therefore, a definitive answer will have to be given by the Court of Appeals.
The Appellate Division, Third Department, held that jurisdiction cannot be invoked under Domestic Relations Law § 75-d (1) (b) if another State is the “home State”of the child. That Court went on to state more significantly, petitioner, in contending that New York has acquired jurisdiction under Domestic Relations Law § 75-d (1) (b), overlooks the critical distinction that exists between that section and its Federal counterpart under the PKPA. Although 28 USC § 1738A (c) (2) (B) indeed contains much of the same best interest, significant connection and substantial evidence language found in Domestic Relations Law § 75-d (1) (b), such provision also requires that it appear that no other State would have jurisdiction under 28 USC § 1738A (c) (2) (A), i.e., that no other State is the “home State” of the child or had been for the six months immediately preceding the commencement of the underlying proceeding. As the PKPA preempts the UCCJA by virtue of the Supremacy Clause of the US Constitution, Domestic Relations Law § 75-d (1) (b) must be read as incorporating the additional limitation set forth in 28 USC § 1738A (c) (2) (B).
The Third Department has, therefore, apparently adopted a clear test for determining whether a New York court may assert jurisdiction pursuant to Domestic Relations Law § 75-d (1) (b). That test is if there is another “home State”, then New York courts may not utilize the language of Domestic Relations Law § 75-d (1) (b) to establish jurisdiction in New York.
This subsection refers the court to section 1738A (c) which reads as follows:
“(c) A child custody or visitation determination made by a court of a State is consistent with the provisions of this section only if:
(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:
(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;
(B) (i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
(C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse;
(D) (i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody or visitation of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction.”
An analysis of case law from the First, Second and Fourth Departments show that the position adopted by the dissent in Matter of Hahn v Rychling is consistent with the decisional law in those Departments. The Fourth Department, in Schumaker v Opperman decided that New York had jurisdiction to entertain a petition for custody. The parties had been divorced in 1986 and sole custody was given to the plaintiff. In 1988, the parties have stipulated in the Supreme Court for a joint custody. In 1989, the plaintiff, with the child, moved to Michigan. In December of 1991, the defendant petitioned in Supreme Court for custody. Under these facts, the Court held although Michigan is the home State of the children, they and plaintiff lived in New York for the four months immediately before this proceeding was begun.
Because defendant has continued to reside in New York and because Supreme Court made a prior custody determination, the court had jurisdiction to entertain defendant’s petition.
The Fourth Department, in Clark v Boreanaz also allowed a modification proceeding to continue in New York under Domestic Relations Law § 75-d (1) (b) even though New York was not the child’s home State. The Court found that the PKPA did not preempt it from modifying its prior order where one of the contestants resided in New York and New York had jurisdiction under State law.
There are three First Department decisions which appear to support the majority opinion in Matter of Hahn v Rychling. However, in each of those decisions, no reference is made to the proceedings being brought to modify a prior New York order.
Therefore, it appears that they each addressed circumstances where a party was bringing a de novo petition for custody and the child’s home State was a State other than New York. Under these circumstances the PKPA is clear that jurisdiction cannot be premised under 28 USC § 1738A (c) (2) (B) if there is a home State for the child that is not New York. Consequently, those decisions are not at odds with the position taken by the dissent in Matter of Hahn v Rychling.
Under 28 USC § 1738A, whenever New York is not the home State and there exists another home State, New York may not exercise jurisdiction to modify a prior New York custody order premised upon the language of the PKPA in section 1738A (c) (2) (B).
Since the PKPA prepreempts the Uniform Child Custody Jurisdiction Act (UCCJA) (Domestic Relations Law § 75-d), the argument is that Domestic Relations Law § 75-d (1) (b) is not available as a basis for jurisdiction if there is another home State.
Because the defendant has continued to reside in New York and because Supreme Court made a prior custody determination, the court had jurisdiction to entertain defendant’s petition. The Fourth Department, in Clark v Boreanaz also allowed a modification proceeding to continue in New York under Domestic Relations Law § 75-d (1) (b) even though New York was not the child’s home State. The Court found that the PKPA did not preempt it from modifying its prior order where one of the contestants resided in New York and New York had jurisdiction under State law.
Pursuant to this reasoning, the Second Department would undoubtedly hold that even if New Jersey is the home State, where New York had issued the judgment awarding custody, it continues to have jurisdiction so long as one of the contestants continues to reside therein and New York’s statute provides for jurisdiction.
The court finds that case law in the First, Fourth and notably the Second Departments, agrees that New York courts have the authority to assert jurisdiction under Domestic Relations Law § 75-d (1) (b) when a modification of a prior New York order is sought and one of the contestants continues to reside in the State even when the child’s home State is not New York. Further, the PKPA is not inconsistent with such a holding for the reasons previously stated herein.
Respondent’s application to dismiss the instant proceeding is denied.
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