The mother and the father, who were never married, had one child together who was born in New York. Two months after the child’s birth, the mother and the child resided in New York, while the father resided in Florida, the mother filed petitions in New York seeking an order of filiation and an order of child support, which relief was granted.
A New York Family Lawyer said that according to the father, the mother moved to Florida, and resided there continuously, at which time the father filed a petition in Florida seeking visitation. The Florida proceeding was dismissed, however, based upon the Florida court’s erroneous conclusion that the prior New York filiations proceeding deprived the Florida court of subject-matter jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act. The father and the mother thereafter filed petitions in New York, where the mother and child were then residing, seeking, respectively, visitation and custody, but neither party informed the New York Court, as required, of the proceedings held in Florida.
Thereafter, a final order granting child custody to the mother and visitation to the father was entered upon the consent of the parties. A New York Custody Lawyer said the mother and the father subsequently filed several petitions in New York, to modify the final order of child custody and visitation, and the father also sought an order transferring jurisdiction of the matter to Florida.
Upon learning, for the first time, of the Florida proceedings, the New York Court held a telephone conference with the Circuit Court of the Fifteenth Judicial Circuit, Palm Beach County, Florida, during which it was determined that Florida had been the “home state” of the child at the time the father’s original visitation proceeding was filed in that state and, thus, that Florida had jurisdiction to make the initial child custody determination. Nonetheless, the Florida court determined that, under the circumstances, including the fact that the New York court had already entered a final order of custody and visitation, Florida was an inconvenient forum and New York was the more appropriate forum.
Following the Florida court’s determination to decline jurisdiction, the father argued before the Family Court that New York had originally entertained the matter only because of misconduct on the part of the mother, and he claims that the mother should not be rewarded for such misconduct. A Nassau County Family Lawyer said the Family Court then held a hearing to determine whether it should decline to exercise jurisdiction pursuant to Domestic Relations, by reason of unjustifiable conduct on the part of the mother. After the hearing, the Family Court declined jurisdiction over the matter, and, thus, dismissed the pending petitions and directed the parties to seek any further relief in Florida.
The issue in this case is whether the Family Court correctly declined its jurisdiction to determine the petitions pertaining to the subject child.
The Court in deciding the case said that Domestic Relations Law mandates, with certain exceptions, that if a Court of this state has jurisdiction because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the Court shall decline to exercise its jurisdiction.
Contrary to the father’s contentions, the Family Court’s jurisdiction over this matter was not gained by virtue of any “unjustifiable conduct” on the part of the mother. A Queens Family Lawyer said the father’s and the mother’s visitation and child custody petitions were filed in New York after the Florida court had dismissed the father’s initial visitation proceeding for lack of jurisdiction. While the decision of the Florida court dismissing the visitation proceeding was later determined to be incorrect, the record demonstrates that, as determined by a Florida court, any error in that regard was not caused by any fraudulent misrepresentations made by the mother, but rather by a misinterpretation of the relevant law. Accordingly, the Court said that contrary to the father’s assertion, to the extent that such conduct could constitute “unjustifiable conduct” pursuant to Domestic Relations Law, the father failed to establish that the New York Court obtained jurisdiction over this matter by virtue of any fraud committed by the mother on the Florida court.
In addition, the father has further failed to demonstrate any misconduct on the part of the mother in returning with the child in New York, which was her state of residence prior to the child’s birth, and where she had been residing with the child since his birth, before relocating to Florida. There was no custody order that has been issued, or any other order of any court, that would have prevented the mother, in whose continuous custody the child had remained since his birth, from returning to New York, and there is no allegation that the father was ever unaware of the child’s whereabouts. Thus, under the circumstances presented, the mother’s conduct in returning to New York was not unjustifiable. Moreover, “unjustifiable conduct” for purposes of declining jurisdiction is limited to conduct that actually creates the court’s jurisdiction. In this case, the determination to decline jurisdiction was improperly based, in part, on the mother’s conduct during proceedings held in New York after jurisdiction was placed.
The Court held that in any event, even if the mother’s conduct had been unjustifiable, the statute directs that jurisdiction should not be declined, despite unjustifiable conduct, where a court of the state otherwise having jurisdiction determines that this state is a more appropriate forum. Thus, the Court held that the Family Court improperly declined to exercise its jurisdiction because the Florida court, the court otherwise having jurisdiction, had already determined that Florida was an inconvenient forum, and that New York was a more appropriate forum under the circumstances. In view of the foregoing, the Court reversed the decision appealed from and reinstated the petitions pertaining to subject child. The Court ordered the Family Court, Nassau County to accept the petition for further proceedings.
Do have Family problems or having issues regarding support, custody, and visitation of your child? Then you need the advice of a New York Family Attorney. In Stephen Bilkis and Associates you can be represented by our New York Child Support Attorney, New York Child Custody Attorney, and New York Visitation Attorney to address your needs.