New York Family Law Blog
A New York Family Lawyer said the mother, respondent, and the father were married in 1980, which marriage was dissolved by a Florida Judgment of Divorce in 1986. At the time of the divorce, the mother was awarded primary custody of her three children. In 1988 an acquaintance of the mother entered her Florida home and abducted, raped and brutally attacked the two daughters, killing one of them and seriously injuring another. The father petitioned the Florida Court for a change of physical custody, which was granted in an Order and Judgment dated 7 June 1989. That order, inter alia, granted the mother liberal contact and access with the children including an extended summer and Christmas visitation. The father was also required to facilitate continued counseling for the children in Rochester which he failed to do. Counseling for one of the children was discontinued in 1992 and the other child in 1993 upon the father’s contention that it was no longer needed.
The children visited with the mother in Florida during summers of 1990, 1991, and 1993, and for the three Christmas holidays in those years, while residing the remainder of the year with the father in Monroe County, New York. Summer visitation did not occur during the summer of 1994, as the parties agreed to postpone visitation so one of the children could participate in a softball clinic. The mother drove to Monroe County to visit with the children during Christmas 1994, after the father refused to send them to Florida pursuant to their prior agreement. No visit occurred during the summer of 1995. Despite the attempts of the mother and her attorney to arrange a Christmas, 1995 visit, the father refused to allow the mother to speak with the children when she telephoned and refused to permit that visit to occur.
Subsequently, on 18 December 1995, the mother filed a Motion for Contempt against the father in the state of Florida. On 28 May 1996, the father was found in willful contempt of the Florida order. Counseling with the mother and the children was ordered by the Florida Court, as well as visitation during the summer of 1996.
On 12 June 1996, the mother filed an Emergency Motion for Contempt, alleging that the father had failed to comply with the aforementioned order. A Nassau County Family Court Lawyer said the father was again found in willful contempt, and on 21 June 1996 was again ordered to provide counseling for the children and visitation with the mother during the summer of 1996. Counseling was subsequently reinstituted by the father with their former counselor. No appeal was taken from the two contempt orders.
On 7 June 1996, the father filed an Order to Show Cause in this Court seeking an order to prevent the children from visiting with the mother as required by the Florida order. It was denied on the ground of lack of jurisdiction in light of the pending Florida proceedings.
On 21 June 1996, the children by their Guardian ad Litem, who now represents them in this Court, filed an Order to Show Cause in the Monroe County Supreme Court to obtain a temporary restraining order prohibiting them from being removed from Monroe County, New York and seeking to modify the Florida Order dated 7 June 1989 by deleting the provisions providing for visitation. The relief requested was essentially the same relief requested in the Order to Show Cause submitted to the Family Court two weeks earlier. On 21 June 1996 A Temporary Restraining Order was granted and a hearing to determine jurisdiction was held. On 7 August 1996, a decision was rendered which found that New York State had jurisdiction over the matter.
Meanwhile, the mother filed another Motion for Contempt in the Florida court and on 19 July 1996, the father was found in contempt for the third time. On 5 August 1996, the mother filed an Order to Show Cause to Modify Custody in Florida. A hearing took place in Florida wherein the mother was granted leave to file a petition to change custody, and an Emergency Petition for Change of Custody was filed on 18 October 1996. No responsive papers were filed by the father and a default was taken against him on 30 January 1997.
On 7 February 1997, the New York State Appellate Division, Fourth Department, unanimously reversed the Supreme Court decision and found that New York lacked jurisdiction to determine the issues of custody and visitation and dismissed the children’s petition in its entirety. The Florida court thereafter held a hearing on the mother’s petition for a change in custody. The court granted the mother primary physical residence of the children, commencing 72 hours after the end of the children’s last school day, but no later than 15 June 1997. Among the reasons cited for the change in physical residence are the father’s: (1) repeated refusal to comply with the Florida Court’s orders; (2) refusal to participate in the Florida litigation in a meaningful manner; (3) culpable conduct in alienating the children’s affection for the mother; (4) inappropriate exposure of the children to the news media; and (5) failure to address constructively the issues surrounding the death of one of their children and the rape and assault of another. It was also ordered that the children visit with the mother from 3 April 1997 to 6 April 1997, which provision was subsequently stayed to 16 April 1997. The Judge, in rendering his decision changing physical residence, was aware of the children’s refusal to visit with the mother, and the children’s psychological reports. The children were represented in the most recent custody modification proceeding by a Florida Guardian ad Litem who spoke with them and with other interested parties, including the father, a stepmother, and the children’s psychologists. The Judge noted in his Decision that while visitation was occurring in Florida through the summer of 1993, “the children enjoyed a warm and loving relationship” with the mother.
Hence, the Monroe County New York Department of Social Services, petitioner, filed this neglect petition against the mother on 3 April 1997, six days after the Judge’s decision and ten days before the ordered visit in Florida.
The petition alleges that the mother has neglected her children; that all of the acts of alleged neglect occurred in the State of Florida, the most recent in 1994, with the exception of one allegation of neglect in Monroe County, New York when the mother went there during Christmas of 1995 to visit with the children; that if the children are returned to the custody of the mother, their mental, emotional and/or physical well-being would be at imminent risk.
A Preliminary Order of Protection was requested from the herein Court to prevent the children from being removed from Monroe County, New York, which would have effectively rendered the Florida custody order unenforceable. Such preliminary order was denied on 4 April 1997 for lack of a showing of “good cause”.
On 10 April 1997, the herein Court held a hearing on the issue of jurisdiction. The Court has considered the arguments of counsel, their memoranda of law, moving and responding papers, the Record on Appeal in the children’s Supreme Court case, and all prior court proceedings, both in the States of Florida and New York.
On Personal Jurisdiction:
The instant action was commenced by petitioner pursuant to Article 10 of the Family Court Act.
A review of the allegations in the petition filed reveals only one act that occurred in New York, an incident involving an attempted visitation by mother in 1995 which she was apparently entitled to pursuant to a Florida order. Since that act, even if established, is not an act of neglect; personal jurisdiction over the respondent cannot be obtained by service of the summons outside New York. Petitioner, the children’s attorney and amicus cite earlier versions of the statute, outdated practice commentaries and cases in which the summons was served in New York.
Accordingly, the petition must be dismissed. Moreover, a Nassau County Child Support Lawyer said that even if personal jurisdiction over the respondent could be obtained, the petition is subject to dismissal on other grounds.
On Subject Matter Jurisdiction:
The New York State Domestic Relations Law (known as the Uniform Child Custody Jurisdiction Act or UCCJA) sets forth the conditions under which a court of the state can exercise jurisdiction over custody proceedings.
“Custody proceeding” includes proceedings in which a custody determination is at issue or is one of several issues including any action or proceeding brought to annul a marriage or to declare the nullity of a void marriage, or for a separation, or for a divorce, but not including proceedings for adoption, child protective proceedings or proceedings for permanent termination of parental custody, or proceedings involving the guardianship and custody of neglected or dependent children, or proceedings initiated pursuant to section three hundred fifty-eight-a of the social services law.
In addition, the Court must consider the Parental Kidnapping Prevention Act of 1980 (hereinafter “PKPA”), which requires every state to give full faith and credit to child custody determinations made by another state consistent with the provisions of the PKPA. Where the PKPA and a state’s version of the UCCJA conflict, the PKPA preempts state law.
The Court has subject matter jurisdiction over the herein neglect proceeding pursuant to the New York State Constitution and Family Court Act. However, since Domestic Relations Law excludes child protective proceedings from the definition of a custody proceeding, Article 5-A does not apply. Accordingly, the UCCJA’s emergency jurisdiction provisions (Domestic Relations Law) cannot be invoked. In any event, there is no emergency.
On Emergency Jurisdiction:
Petitioner, the children’s attorney and amicus argue that emergency circumstances, i.e., the children’s reluctance to have contact with the mother, require this Court to ignore the strict jurisdictional mandates of the UCCJA and the PKPA.
It must be noted that emergency jurisdiction only permits the Court to determine custody when: the child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child.
The PKPA has a similar provision predicating jurisdiction on physical presence combined with abandonment or necessary emergency protection because the child has been subjected to or threatened with mistreatment or abuse.
On the other hand, to exercise emergency jurisdiction under the UCCJA, there must be evidence of “imminent and substantial” danger to the child in question.
New York courts have reserved emergency jurisdiction for bona fide demonstrable emergencies only. The use of emergency jurisdiction to forum shop has also not been tolerated by the courts.
Notably, the official commentaries to the emergency jurisdiction section include a blunt caveat stating that “this extraordinary jurisdiction is reserved for extraordinary circumstances; when there is child neglect without emergency or abandonment, jurisdiction cannot be based on this paragraph.”
The Court finds that there is no “emergency” under either the UCCJA or PKPA.
On the Parental Kidnapping Prevention Act of 1980 or the PKPA:
While New York excludes child neglect and other agency related cases from its definition of a “custody proceeding”, the question remains whether the instant neglect proceeding constitutes a custody proceeding within the meaning of the PKPA, a question which has divided the courts that have addressed it, and cases cited therein. The Court concludes that under the facts and circumstances presented here, where: 1) another state exercising exclusive custody jurisdiction has made a custody determination some six days before this neglect case was filed; 2) two New York courts have held that neither the father nor the children can litigate custody in New York; 3) there is no emergency; 4) the father and the children were represented by counsel in the Florida custody modification proceedings; and 5) petitioner’s protective concerns are based on claims which were raised, could have been raised and/or certainly should have been raised in the Florida proceedings and the two dismissed New York proceedings commenced by the father and the children, the PKPA precludes this Court from modifying the Florida custody Order in this Article 10 child protective proceeding.
In conclusion:
The Court does not dispute that the children are experiencing significant emotional distress. However, this situation is of long duration, the matter has been considered by a Florida Court and there is no reason to believe that the Florida court is not competent to address any child protective concerns. That Court, in fact, has addressed child protective concerns, most recently, for example, by requiring that the children be met by a Florida counselor at the airport in Pensacola when they arrive for their April visit, have counseling each day of their five days there, and again when they return in June.
The Court is not unmindful that the children’s emotional distress may have been exacerbated by the father, who now through petitioner, for a second time in this Court, seeks to redress an admittedly unfortunate situation which he may have helped to create. The continued re-victimization of these children must stop; the healing process must be permitted to begin. Outside of the glare of the public spotlight, this tragic family must be allowed to get on with their lives in some measure of peace.
The herein court is well aware that its decision will not be “popular”, as there is considerable public sentiment, including the expressions of a number of prominent elected officials, urging the upholding of petitioner’s position. However, the court cannot and will not be influenced by considerations outside the rule of law. To do otherwise would be to undermine the very integrity of the judicial system.
Accordingly, the Court determines it is without jurisdiction to decide the herein case. Petition dismissed.
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