A man married a physician in June 1985 in New York. They have one child who was born on July 1990 in New York. In June 1991, the man commenced a divorce proceeding, also in New York, which was settled on the record before the trial court in July 1991.
A New York Family Lawyer said that on December 1992, the parties executed a settlement agreement, the terms of which were incorporated by reference, but not merged into, a subsequent judgment of divorce. The settlement agreement provided that it is expressly understood and agreed that so long as one of the parties is a resident of the State of New York, the Supreme Court of the State of New York shall retain personal jurisdiction of the parties, of the child, and of the case, for all purposes.
Earlier in 1992, while the divorce was pending, the woman had moved to Louisiana and had sought, unsuccessfully, to have jurisdiction over the matter transferred to that state. Pursuant to the divorce judgment, the woman was granted sole legal and physical child custody, and the man was granted specified visitation.
In January 1993, the woman moved to Wyoming with her daughter. The man claims that the child engaged in an elaborate scheme to conceal her relocation from him until August 1993. A New York Custody Lawyer said that on November 1993, the man attempted to modify the original divorce judgment, seeking sole child custody. The woman responded by moving to dismiss the New York proceeding and by endeavoring to commence a parallel action in Wyoming. Her attempt to convince the New York court to cede jurisdiction to Wyoming failed.
The woman has failed to demonstrate that the court was unwarranted in retaining jurisdiction of the child custody dispute under Domestic Relations Law to avoid enforcement of the forum selection clause in the parties’ settlement agreement, incorporated into the judgment of divorce.
The parties expressly agreed that New York would continue to have personal jurisdiction over them for all purposes, including child custody issues, a clause that was accepted by the woman with full knowledge that she would be residing with the child in another State. Moreover, her Wyoming action was commenced some four months after the New York proceeding, rendering Domestic Relations Law inapplicable to the present matter. Similarly, the woman has not established that Wyoming is a more appropriate forum than New York for hearing the instant matter.
The trial court referred the man’s request for sole child custody of their child to a referee to explore the best interests of the child. In October 1997, the referee issued a report concluding that although the woman had tried to alienate the child’s affections towards her father, there had not been substantial interference with the man’s visitation rights. The report also concluded that it was in the best interests of the child, who was then seven years old, to remain with her mother, as that was the only home she had ever known. The referee’s report and recommendations were never formally adopted by the trial court. Instead, in April 1998, the man and the woman entered into a court-ordered stipulation which provided that the woman would retain sole child custody, stipulation granted the man liberal visitation rights; allowed his child to have a private telephone installed in her room at her father’s expense, and concluded that except as modified, the parties ratify and reconfirm each and every provision and term of the agreement of the parties dated December 15, 1992 which shall remain in full force and effect.
In August 1998, the woman commenced another proceeding in Wyoming, to change the visitation provisions of the April 1998 stipulation. The man moved in New York to enjoin the Wyoming proceeding, which the woman discontinued. The man was awarded attorneys’ fees for the costs of these proceedings.
The 1992 settlement agreement and the April 1998 stipulation both provided that the man was scheduled to have his daughter visit him in New York at various times during each year. However, by January 2000, the woman had attempted to curtail or cancel over six of the child’s trips. For example, she made last-minute calls stating that the child was sick, or told the man that she could not convince his daughter to get on the flight to New York. In January 2000, the man moved to hold the child in contempt before a New York court, for violations of the visitation provisions. The woman has cross-moved in March 2000.
On February 14, 2001, the woman again moved to have the case transferred to Wyoming, arguing that New York lacked subject matter jurisdiction, or, alternatively, that the court should decline to exercise jurisdiction. The court denied the woman’s application, and in July 2001 a hearing on the contempt motion was commenced.
The first witness at the hearing was a doctor. A year earlier, in the summer of 2000, he had interviewed the man, the woman, the child, the man’s present husband, and the woman’s adopted daughter and had prepared an extensive report. The report was entered into evidence at the hearing. A Nassau County Family Lawyer said the expert doctor testified that she was originally assigned to the case in 1992, and that when she prepared her report in 2000, she attributed the child’s protestations about visiting her father in New York to an ongoing and relentless alienation to which the child is subjected based upon the mother’s distrust, anxiety and anger at the father. The doctor recommended that the woman be encouraged to move to the northeast, that if relocation were not possible the child should continue to reside with her mother in Wyoming, but that the court should directly inform the staff that if visitation is not complied with a change in child custody would be considered. At the time of the 2001 contempt hearing, the doctor had not re-interviewed the parties. However, she opined that, based upon the events which had transpired in the year since she issued her most recent report, the woman cannot be expected to comply with the court’s already ordered visitation and custody arrangements.
In July 2001, the court informed the woman’s lawyer that it would hear testimony to determine whether a change in child custody was in the best interests of the child. A Queens Family Lawyer said it also strongly urged counsel to advise his client to come to New York to testify, emphasizing that it intended to make a determination as to all of the issues that summer.
On August 3, 2001, the man, his wife, his sister-in-law and his mother testified about the child’s visits to New York. The attorney advised the court that it would be impossible for his client to appear in New York. He also stated that the relevant witnesses his client wished to call were all located in Wyoming and would not come to New York to testify.
The court found that the woman’s refusal to appear in New York to testify demonstrated that she was someone who just utterly has contempt for the authority of the Court and the proceeding and, indeed, for the right of her child to have a relationship with her father. The court found that integral to the obligation of a custodial parent was the duty to afford the child a loving relationship with the noncustodial.
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