New York Family Law Blog
On December 6, 2010, Administration for Children’s Services (“ACS”) commenced the instant Family Court Act Article 10 abuse matter. A Bronx Order of Protection Lawyer said that, the Petition alleges the following: A personnel from the Police Department called in a report on November 24, 2010, alleging that the respondent father has been having sexual intercourse with the subject child now 13 years old, on a regular basis. A New York Family Lawyer said the report further alleges that the most recent incident occurred during September of 2010. Further, the subject child’s mother learned of the sex abuse on November 24, 2010, when she found a nude photograph that the subject child had sent to the respondent father via cellular phone.
A New York Child Custody Lawyer said that, the subject child stated to an ACS caseworker that the respondent father began having sexual intercourse with her when she was eleven years old. She further stated that the respondent father has had sexual intercourse with her on numerous occasions and he also has inserted his fingers into her vagina, performed oral sex on her and fondled her breasts. She also stated that the respondent father asked her to send him pictures of her vagina. Finally, the subject child also stated that the respondent father told her that their sexual relationship is their secret until the day they die.
When ACS first appeared on this matter, Petitioner indicated that Respondent Father lived in Georgia and was believed to have last been in New York in November 2010 during a Thanksgiving visit. ACS further noted that the mother and the children had relocated from Texas and had been living in New York since September 2010. The prior judge ordered personal service of the Summons and Petition on the Respondent Father, paroled the children to their mother under ACS supervision, and issued a Temporary Order of Protection against the Respondent Father on behalf of the Non-Respondent Mother and the Subject Children preventing the father from having any contact with the mother and children.
On March 1, 2011, ACS returned to court for Return of Process. Respondent Father appeared in court for the first time and counsel accepted assignment as to the representation of the Respondent Father for the limited purpose of contesting jurisdiction. Respondent Father did not accept service of the petition. Upon inquiry of the Court, ACS indicated that the subject child sent the nude photograph discussed in the petition after she and her mother and sisters had moved back to New York in September 2010. Also on that date, a Queens Family Lawyer said that, petitioner made an oral application to this court to voluntarily withdraw the Article 10 abuse petition without prejudice contending that this court does not have personal jurisdiction because the Respondent Father is a resident of Georgia and the alleged acts giving rise to the petition occurred in Texas. The Court declined ACS’s application to withdraw the petition, noting the serious nature of the allegations; granted an application by the Attorney for the Children to submit a brief on the jurisdictional issue; and requested that ACS and the father’s attorneys put their positions in writing as well. The Court, having reviewed the briefs and applicable law, denies Petitioner’s application to withdraw the petition.
The issue in this case is whether the Court has personal jurisdiction over the respondent father to try the case.
The Court said that, child neglect and abuse matters involving out-of-state parties such as the instant one constitute “child custody proceedings” and expressly fall under New York Domestic Relations Law Article 5-A, the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). The legislative intent of the UCCJEA is to “provide an effective mechanism to obtain and enforce orders of custody and visitation across state lines and to do so in a manner that ensures that the safety of the children is paramount and that victims of domestic violence and child abuse are protected.”
A Queens Custody Lawyer said the Court said that the proposed grant of Petitioner’s application would result in the abuse allegations being unaddressed by any Family Court, leaving the subject child and her sisters vulnerable to potential future harm. To prevent such an outcome, the Court may invoke its temporary emergency jurisdiction powers in such a matter “if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child, a sibling or parent of the child.” Significantly, where, as here, “a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction, a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.”
In this case, the Court held that no other state has jurisdiction and no prior orders of visitation were entered in any other state including Texas, where the Respondent once lived. Further, although Texas is the state in which the mother, children, and father lived for a significant period prior to the mother and children’s relocation to New York, ACS has stated that Respondent Father is now believed to live in Georgia. In deciding whether to exercise its emergency jurisdiction powers, a court will consider “whether a return to the home jurisdiction would place the child in imminent risk of harm.” Given the severity of the allegations in the petition and the submission by the Attorney for the Children, including an affidavit from its social worker who interviewed the subject child, an emergency exists. It is clear that it would be contrary to the subject child’s welfare to return to Texas (or to go to Georgia, where her father reportedly lives) and this Court is an appropriate forum to protect the New York State-resident children from potential sexual abuse.
Moreover, the family has significant connections to the State of New York. The submission from the Attorney for the Children states that the subject child was born in New York and at some point, moved to Texas. The subject child moved back to New York with her mother and sisters “around October 2010” and is enrolled in eighth grade at a public school in New York. Importantly, the alleged abuse continued in New York. Allegedly, the subject child, at the request and encouragement of Respondent Father, sent numerous text messages to Respondent Father including four or five pictures of herself in the nude. The alleged illicit text messages were sent since the subject child moved back to New York and the Court finds that the allegations related to the text messages would constitute abuse as defined in the Family Court Act § 1012(e).
Petitioner cites a 1989 case, for the proposition that FCA § 1036 “does not specifically authorize service of process without the state, nor does it authorize substituted service unless it can be effectuated within New York’s boundaries.” The Court notes that the New York State Legislature, one year after the 1989 case, modified FCA § 1036 to allow for service out of state in child protective proceedings where, as here, the child resides in New York and the alleged abuse or neglect occurred within the state. If the out-of-state parent does not appear after service, the court may proceed without him. In any event, the FCA § 1036(c) requirement that the alleged abuse or neglect occurred in New York no longer controls and jurisdiction is determined by applying UCCJEA principles and “every expansive UCCJEA procedural alternative (including service) should be considered and employed whenever practicable within the Article 10 framework.”
Accordingly, for the reasons set forth above, the Court denies Petitioner’s application to withdraw the petition and hereby orders petitioner to serve respondent Father pursuant to the provisions of NY D.R.L. § 75-g.
The rule is that, in deciding whether to exercise its emergency jurisdiction powers, a court will consider whether a return to the home jurisdiction would place the child in imminent risk of harm. A child that has been subjected to sexual abuse by her own father is entitled to the court’s protection. A Bronx Order of Protection Attorney can help the child from further harm that her father may bring to her. Bronx Child Custody Attorney can file necessary pleadings to divest the custody of the child from his abusive parent. Our Bronx Family Attorney at Stephen Bilkis and Associates can handle your case. Call us.