STATE OF NEW YORK
FAMILY COURT: CHAUTAUQUA COUNTY
In the Matter of a Proceeding for the
Custody and/or Visitation of a Minor Under
Article 6 of the Family Court Act
M. H. Petitioner
vs Docket No. V-745-746-98
A. H. Respondent
JAMES J. SPANN, ESQ. FOR M.H.
KENNETH M. LASKER, ESQ. FOR A. H.
This matter was brought before the court as a result of violation petition filed by the father, M.H.. The father alleged that the mother had violated the terms of the custody order by relocating with the child to Virginia. The mother was served with notice and appeared through her attorney, Kenneth Lasker, Esq. The mother's attorney made a motion that the New York Family Court was not the court of appropriate jurisdiction to determine this matter. The mother argues that the child had been in Virginia for slightly more than six months when this action was commenced, and thus Virginia is the appropriate forum to determine this matter. Counsel for both parties submitted memorandums of law in this matter. The court spoke directly with the Juvenile and Domestic Relations Court of Loudoun County, Virginia, in which a custody petition is also pending but was filed after the New York proceedings commenced. Counsel waived their right to a hearing in this matter and consented that the court determine the matter upon the information submitted.
The parties were divorced in the Supreme Court of Chautauqua County, New York on October 23, 1992. The divorce was a result of a stipulation of settlement between the parties. The stipulation granted the mother custody of the minor children of the marriage with visitation to the father. The agreement also specifically provided that following:
"Should the Wife choose to relocate beyond the 50 mile
radius from Westfield, New York, she may, while remaining the
primary custodial parent, only with the prior written consent
of the Husband or pursuant to an Order of the Supreme court,
State of New York - upon written notice to the Husband prior
to said application for removal and relocation so long as the
Husband remains a resident of the County of Chautauqua and or
the County of Erie."
The father currently is a resident of Erie County, New York. The facts are undisputed that the mother relocated with the child outside the 50 mile radius of Westfield without written consent of the father or a New York State Court Order. The mother argues however that she had the consent of the father for the move, as the child changed residential placement at the time of the move. A modification of the original judgement was made by the Chautauqua County Family Court on July 29, 1998 to the extent that the court granted both parties joint custody of the parties two children and physical placement of Shaant to the father. That is the current controlling order of custody in this matter.
The court next turns to the Federal Parental Kidnapping Prevention Act (PKPA)(28 USCS Sec. 1738A). The PKPA is a federal statute and takes precedent over the Uniform Child Custody Jurisdiction Act,(UCCJA) (NY Domestic Relations Law Sec. 75-c). Unlike the Uniform Child Custody Jurisdiction Act, Parental Kidnapping Prevention Act does Not allow more than one state to exercise jurisdiction over placement of a child at any given time. (Templeton v. Witham, 595 F. Supp. 770). Under the PKPA, full faith and credit is given to child custody determinations. The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsections (f), (g) and (h) of this section, any custody determination or visitation determination made consistently with the provisions of this section by a court of another state. (28 USCS Sec. 1738A(a)).
The PKPA provides New York with continued jurisdiction under section 1738A(d), as the father continues to reside in New York. Thus, as Chautauqua County, New York Family Court had issued a prior order, Virginia may only modify this order if a condition in subsections (f), (g) or (h) of the section are met.
Subsection (f) states "A court of a State may modify a determination of the custody of the same child made by a court of another state, if (1) it has jurisdiction to make such a child custody determination; and (2) the court of the other State no longer has jurisdiction or it has declined to exercise such jurisdiction to modify such determination. This court has continued jurisdiction and does not decline to exercise same. Thus this provision does not apply. Subsection (g) does not apply to modification proceedings but only to initial custody determinations. Subsection (h) also fails to apply, as this court has elected to exercise it's jurisdiction in this matter.
In Jesus A. v. Lizette A, 145 Misc. 2d 165; 546 N.Y.S.2d 284; 1989 N.Y. Misc. LEXIS 611 the court said the following "The PKPA provides that New York has jurisdiction to modify its prior custody determination if it has jurisdiction pursuant to its laws to make a custody determination (28 USC § 1738A[c]), and New York has previously made a custody determination and remains the residence of the child or of either party (28 USC §1738A[c][E]; [d]). New York has jurisdiction pursuant to 28 USC § 1738A[d] if one of the contestants resides in this State. Therefore, the fact that New York is no longer the children's "home State" since they have resided in another State for a period in excess of six months would not automatically preclude it from exercising jurisdiction (Matter of Heitler v Hoosin, 143 AD2d 1018; Matter of Philip v Sharon, 137 Misc 2d 385; Jefferson v Downs, 107 Misc 2d 852). Clearly under the PKPA, New York has appropriate and superior jurisdiction over the Virginia court.
New York has jurisdiction pursuant to its laws if the child and one contestant have a significant connection with New York and there is substantial evidence within the jurisdiction of the court concerning the child's present or future care, protection, training and personal relationship pursuant to Domestic Relations Law § 75-d[b] ( Matter of Philip v Sharon, supra). The following are factors to be considered by the court in determining whether a significant connection exists: whether the original custody determination was made in New York ( Matter of Heitler v Hoosin, supra; Matter of Philip v Sharon, supra; Walsh v Walsh, 117 Misc 2d 815); whether petitioner continues to reside in the State after respondent has left with the child(ren) (Matter of Heitler v Hoosin, supra; Jefferson v Downs, supra); whether petitioner continues to work in New York and intends to raise his children here if he receives custody ( Jefferson v Downs, supra); whether the children were born in New York, and lived here for their entire lives until removal to another State ( Matter of Heitler v Hoosin, supra); whether the children's extended family resides in New York ( Matter of Philip v Sharon, supra; Jefferson v Downs, supra); whether the parents have a significant connection to New York, to wit, were married here, resided here during the marriage and have relatives who continue to reside here ( Matter of Heitler v Hoosin, supra; Jefferson v Downs, supra); whether the children's medical and school records are in New York (Walsh v Walsh, supra); and whether the children have visited in New York since their removal to another State ( Matter of Philip v Sharon, supra). "
Under the law, New York may retain jurisdiction and this court finds that retaining this matter in this court is in compliance with the law and also serves the best interest of the child. Thus the court denies the motion to dismiss this matter for lack of subject matter jurisdiction.
This matter will be scheduled for further proceedings.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.
Dated this__23_____day of August 2000 at Mayville, New York.
Hon. Judith S. Claire-Family Court