New York Family Law Blog
The parties were divorced pursuant to a judgment of divorce which was granted upon defendant’s (father) default. The Court with respect to the child custody and child support, ordered that plaintiff (mother) shall have custody of the child of marriage and that the father shall pay the Mother as and for the support of the parties’ child the sum of Two Hundred Ten dollars ($ 210.00) per week for child support, on Friday of each week thereafter, which shall be paid to through the Support Collection Unit for Kings County located at NYS Child Support Processing Center.
A New York Family Lawyer said the father, in his affidavit state, that after the divorce, their child resided with the maternal grandmother and other maternal relatives in Brooklyn. Thereafter, without his consent and Court approval, mother removed the child from the State of New York to Ontario, Canada. Father attempted to locate the child in Canada but the same was unsuccessful, so he filed a petition for visitation with the Kings County Family Court, but was unable to effectuate service of summons that resulted to the dismissal of the petition.
A New York Child Custody Lawyer said father’s counsel managed to acquire the name and address of the child’s school in Ontario, by securing said information from the child’s former school in Brooklyn. A New York Child Custody Lawyer said that father attempted to contact the school in order to gain access to the child, but to no avail because the school refused to give information about the mother and his child.
Father further claims that, since mother relocated to Canada, she has done everything in her power to frustrate, defeat and impair his rights to parenting time with their child, including but not limited to changing and/or disconnecting all of the phone numbers, and upon information and belief, advising the maternal grandparents and relatives to divulge nothing to him. A Nassau County Family Lawyer said her conduct necessitated numerous legal applications and filings in the Kings County Family Court incurring the expense of attorneys, investigators and process server’s fees, costs and expenses, all in effort to merely find out his daughter’s address and to gain access to the subject child.
Initially, father claims that from the time of their divorce he had regular and meaningful access to his daughter, even when the child was residing with the maternal grandparents. Father asserts that he requested the maternal grandparents to provide him information on the whereabouts of his daughter, but to no avail. Father claims that he was left with no choice but to bring the matter before the Courts.
In view of the foregoing, father moves for a suspension and downward modification of his child support obligations on the ground that the mother allegedly has refused his visitation with the parties’ daughter, has removed the child to another jurisdiction without court approval or notice to Father and has failed to provide him with an address, telephone number or e-mail address for the child. He further moves for an order directing a change of child custody and/or immediate visitation with the child.
Mother cross-moves for dismissal of Father’s application on the grounds that: (1) the court lacks subject matter jurisdiction to resolve the instant motion, pursuant to Domestic Relations Law, since neither the parties nor the child resided within the state of New York on the filing date of the subject application or six months prior to same; and (2) the court lacks subject matter jurisdiction because the child and her mother, the plaintiff, had no significant connection with the State of New York on the filing date of the instant application and for six months prior to such filing, and, in addition, substantial evidence is no longer available in the State of New York concerning the child’s care, protection, training and personal relationships. Plaintiff also moves, alternatively, for an order whereby the court declines jurisdiction over the instant child custody/ visitation dispute on the ground that New York is an inconvenient forum and a declaration that the province of Ontario, Canada is the appropriate forum to exercise jurisdiction over the controversy between the parties.
In support of her cross motion, Mother states that the subject judgment of divorce was obtained upon the default of Father. A Queens Family Lawyer said he was served by Mother with all divorce documents in Santa Clara, California, after he was located there by private investigators retained by Mother. He commenced his own action for divorce against Mother, but thereafter did not prosecute such action.
With respect to the custody issues at bar, Mother states, that after they separated, father had limited time with their daughter, and that he would occasionally call her and schedule visitation with their daughter, only to disappoint her by not showing up. From that day on, mother said that father had no meaningful contact with their daughter. In addition, during the aforementioned time period father failed to contribute to their child’s support.
Mother further claims that father commenced a visitation proceeding in the Family Courts, Kings County and that she commenced proceedings seeking custody and child support in the same Court. With mother’s consent, the Family Court granted three 30 hours supervised visitation on a day on the weekends, at mother’s home. Father showed up once and stayed for five minutes. The Family Court continued the aforesaid temporary Order of visitation however, Father failed to exercise it. Father’s visitation proceeding was dismissed due to his non-appearance in court.
Mother asserts that father has not visited their daughter for more than four years, and that after their divorce was finalized, she relocated with their daughter to Ontario, Canada. Whereas, father relocated to California prior to the last Family Court child support hearing wherein father appeared telephonically before the Support Magistrate, whereupon an Order of child support was entered on his consent.
The issue in this case is whether the New York Court has jurisdiction to hear defendant’s motion for suspension and downward modification of his child support obligations.
The Court held, based on the record before it, that it does not have subject matter jurisdiction to adjudicate the instant child custody dispute. Pursuant to statute, a Court of this state which has made an initial child custody determination consistent with Domestic Relations Law has exclusive continuing jurisdiction over said determination until a court of this state determines that neither the child, the child and one parent, nor the child and a person acting as parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships.
Moreover, a court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section seventy-six of this title.
The Court cited the pertinent provisions of DRL §76-a [2]) Section 76 (1) (a) provides the following requisites concerning the exercise of jurisdiction by the court with respect to initial custody determinations:
First, except as otherwise provided in section seventy-six-c of this title concerning temporary emergency child custody jurisdiction, a court of this state has jurisdiction to make an initial child custody determination only if:
(a) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as parent continues to live in this state;
(b) a court of another state does not have jurisdiction under paragraph (a) of this subdivision, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under seventy-six-f or seventy-six-g of this title, and;
(I) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(ii) substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
(c) all courts having jurisdiction under paragraph (a) or (b) of this subdivision have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section seventy-six-f or seventy-six g of this title; or
(d) no court of any other state would have jurisdiction under the criteria specified in paragraph (a), (b) or (c) of this subdivision.
Second, subdivision one of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
Third, physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.
The Court define Home state as the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.
In any event, a court which has obtained either initial or continuing jurisdiction pursuant to this statutory framework may decline to exercise same if it determines that New York is an inconvenient forum for the adjudication of the subject custody dispute. In so deciding, the court is required to consider all relevant factors, including the following:
(a) Whether domestic violence or mistreatment or abuse of a child or sibling has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(b) The length of time the child has resided outside this state;
(c) The distance between the court in this state and the court in the state that would assume jurisdiction;
(d) The relative financial circumstances of the parties;
(e) Any agreement of the parties as to which state should assume jurisdiction;
(f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and the familiarity of the court of each state with the facts and issues in the pending litigation.
Based upon the relevant statutory factors, the Court finds that it does not have subject matter jurisdiction over the instant custody dispute. It is undisputed that the parties’ child relocated to Ontario, Canada with Mother. Father did not move this court for visitation or custody. At the time of the subject relocation to Canada by Mother, there was no visitation or custody proceeding pending and Father had not obtained an order from the court with respect to same. Indeed, the only custody adjudication in effect at that time was the judgment of divorce which provided that Mother had sole custody of the parties’ child and established Father’s child support obligation.
The Court held that the only evidence proffered by Father concerning the connection of the parties’ child’s and Mother to New York is the presence within the state of several maternal relatives, as well as a physician who at one time acted as the child’s pediatrician. Accordingly, in applying section 76-a (1) (a) to the case at bar, the Court finds that “neither the child, the child and one parent, nor the child and a person acting as parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships.” Rather, the child currently lives in Canada on a full-time basis with her Mother, step-father and younger brother and has completed three school grades in school within that jurisdiction. Substantial evidence concerning her relationships within the immediate family unit, friendships, activities, scholastic performance, health and development, therefore, cannot be said to exist any longer in New York, a forum with which the child now has an attenuated relationship with respect to all aspects of her daily life. Indeed, her residence in Canada is now the locus for such evidence.
The court does, however, retain jurisdiction over that portion of Father’s motion seeking a downward modification of his child support obligations.
Pursuant to Family Court Act a tribunal issuing a support order consistent with the law of this state has continuing, exclusive jurisdiction over a child support order as long as this state remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued. In the instant case, the court finds that New York is the current residence of Father, the obligor under the child support provision of the subject divorce judgment, based upon his 2008 tax return filing and his representations that his presence in California was only temporary and for the purpose of obtaining employment after his New York employment ceased. Accordingly, the court retains jurisdiction to consider Father’s application for a downward modification of his child support payments.
The court declines, on the record before it, to grant Father’s motion for downward modification. Although a parent’s loss of employment may constitute a change of circumstances warranting a downward modification where he or she has diligently sought re-employment, the proper amount of support payable is determined not by a parent’s current economic situation, but by a parent’s assets and earning power.
In addition, Father contends that his support obligations should be suspended entirely due to mother’s alleged interference with his visitation rights. Such argument is also unavailing. A court has the authority to suspend a noncustodial parent’s obligation to pay child support and/or maintenance when it finds that the custodial parent has deliberately frustrated or actively interfered with the noncustodial parent’s visitation rights.
Hence, the Court denied that portion of Father’s motion seeking custody and/or visitation and that portion of Father’s motion seeking a downward modification of his child support obligations.
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