Family Court, Kings County, March 29, 2019

Ella Esha, Brooklyn, for respondent.

Zena Hardy, Brooklyn, for petitioner.

The Children's Law Center, Brooklyn (Michael Robert Chazoule of counsel), Attorney for the Children.

A motion having been filed with this court on September 12, 2018, requesting an order vacating the order of visitation dated September 14, 2016, for lack of subject matter jurisdiction, and a judge of this court, upon examining the motion papers and supporting affidavit(s) and hearing testimony in relation thereto and the following having appeared: R.L.B. and Zena Hardy; C.D.G. and Ella Esha, finds that it is ordered that the motion by respondent, Ms. G. (mot sequence No. 1), to vacate the September 14, 2016 final order of visitation, is hereby denied. This amended decision and order replaces the decision and order issued by the court on March 28, 2019, as that decision and order contained an inadvertent error (duplication of a portion of the background section).

In this modification proceeding, petitioner, R.L.B. (Mr. B.), seeks to modify a final order of visitation dated September 14, 2016 (the FOV), [*2]which provides for respondent, C.D.G. (Ms. G.), to have visitation with the parties' children, K.B. (DOB: xx/xx/2013) and S.B. (DOB: xx/xx/2014). The FOV resolved Ms. G.'s visitation proceeding commenced on April 22, 2016. Ms. G. now moves to vacate the FOV upon the ground that the court lacked subject matter jurisdiction over her visitation proceeding (and, therefore, to issue the FOV), and to dismiss the instant modification proceeding. Mr. B. and the Attorney for the Children oppose the motion.

Ms. G.'s motion is denied in its entirety as without merit in fact or law. The undisputed facts establish that, as of April 22, 2016—the date Ms. G. commenced her visitation proceeding—New Jersey had not issued a "child custody determination" within the meaning of Domestic Relations Law § 76-a, and New York was the "home state" of the children (and Brooklyn their "home" county). Accordingly, this court had—and at all {**63 Misc 3d at 808}times has had—subject matter jurisdiction over the instant custody and visitation matter.

Background

The following controlling facts are undisputed. In December of 2014, K.B. and S.B.—then ages one (nearly two) and six months, respectively—were (and had been) residing primarily with Ms. G. in New Jersey. In mid-December 2014, Ms. G. brought the children to stay with Mr. B. in Brooklyn (for the purposes of this analysis, the length of time he was to care for the children is irrelevant). At that time, Ms. G. knew of her impending incarceration. Although the exact date is not clear to this court, it appears that Ms. G. was taken into custody immediately after she delivered the children to Mr. B.; she remained incarcerated for approximately eight months thereafter.

In January 2015, Ms. G. filed, from jail, an "emergency application" in New Jersey for the immediate return of the children from Mr. B. and for custody. By order dated February 26, 2015, the New Jersey court (Judge James P. Wilson) found that New Jersey had jurisdiction over the matter because the children had resided there for six months but denied, without prejudice, Ms. G.'s petition. In pertinent part, the order provides:

"Plaintiff (telephonic) appeared. Defendant was properly served and failed to appear. The plaintiff is currently incarcerated. Plaintiff's application to [sic] for custody of the minor children, K.B. (dob xx/xx/13) & S.B. (dob xx/xx/14), is denied without prejudice. New Jersey retains jurisdiction over this matter, as the children have resided in New Jersey for more than 6 months. The plaintiff may file an application for custody upon her release from jail. This matter shall be relisted in 20 days to address custody."

In the meantime, on January 6, 2015, Mr. B. commenced a custody proceeding in this court (docket Nos. V-xxxxx-15, V-xxxxx-15). By order dated March 3, 2015, the court (Tamara Schwartz, Ref.) dismissed Mr. B.'s petitions with prejudice upon the ground that New Jersey retained jurisdiction over the matter, citing the February 26, 2015 order.

As far as this court can tell, the New Jersey court did not address the issue of custody 20 days, or any other time, after February 26, 2015. Indeed, for all it appears, New Jersey has never issued an order determining or providing for custody of{**63 Misc 3d at 809} the parties' children. It is also undisputed that since December 2014 the children have continuously resided with Mr. B. in New York (Brooklyn first, and more recently Queens), while Ms. G. has maintained a residence in New Jersey since her release from jail in or about September 2015.

On March 30, 2016, Mr. B. commenced another custody proceeding in this court (docket Nos. V-xxxxx-16, V-xxxxx-16). It is clear that at the time of commencement the children had been residing in Brooklyn continuously for almost 15 months, and no other court had issued a child custody determination within the meaning of the Uniform Child Custody Jurisdiction and Enforcement Act (UCC-JEA). Yet, for reasons not clear, Mr. B.'s petitions were dismissed with prejudice on the filing date because "New Jersey has retained jurisdiction."

However, less than one month later, on April 22, 2016, Ms. G. commenced her visitation proceeding (docket Nos. V-xxxxx-16, V-xxxxx-16). In her petitions, Ms. G. admitted that the children had been residing with Mr. B. in Brooklyn since December 2014. On September 14, 2016, this court (Hon. Dean T. Kusakabe) issued the FOV, awarding Ms. G. parenting time with the children on the weekends (Friday from 7:00 p.m. to Sunday at 9:00 p.m.). By all appearances, the parties followed the FOV without incident for at least one year.

On September 5, 2017, Ms. G. again filed for custody with the New Jersey court. On September 6, 2017, Mr. B. commenced the instant modification proceeding (docket Nos. V-xxxxx-16/17A, V-xxxxx-16/17A), seeking to change the pick-up and drop-off times and locations for Ms. G.'s weekend visits. It appears that Ms. G. did not advise the New Jersey court of the FOV, or that the children had been continuously residing in Brooklyn with Mr. B. since December 2014. Thus, following a conversation between the judges presiding over the two proceedings, the New Jersey Judge dismissed, without prejudice, Ms. G.'s custody petition, recognizing that this court has subject matter jurisdiction over the custody and visitation issues herein. In his order dated November 30, 2017, New Jersey Judge Alan Lesnewich found, in pertinent part:

"After having conferred with the Honorable Dean Kusakabe of the Kings County Court and as per the Uniform Child Custody Jurisdiction and Enforcement Act, this Court has determined that it mistakenly concluded in its order dated September 22, 2017 that the NJ Family Court had proper jurisdiction{**63 Misc 3d at 810} over this matter. According to the record in the New York docket, the plaintiff filed an application in April 2017 [sic] for visitation thereby conceding jurisdiction to the NY court and having certified/testified that the children had been living with the defendant in NY for 8 months preceding the April 2017 [sic] application thereby conferring jurisdiction with the NY Court."

On March 6, 2018, Ms. G. commenced a custody proceeding in this court (docket Nos. V-xxxxx-18, V-xxxxx-18), as well as a proceeding to enforce the FOV (docket Nos. V-xxxxx-[*4]16/18C, V-xxxxx-16/18C). On July 26, 2018, the court dismissed, without prejudice, Ms. G.'s custody petitions as withdrawn, leaving open her enforcement proceeding and Mr. B.'s modification proceeding. In September 2018, Ms. G. moved to vacate the FOV and to dismiss the instant modification petition. Ms. G.'s motion is denied for the reasons that follow.

Governing Law

The Uniform Child Custody Jurisdiction and Enforcement Act, codified in Domestic Relations Law §§ 75-77, governs jurisdiction and choice of forum in child custody and visitation proceedings. One of the stated goals of the UCC-JEA is to "provide an effective mechanism to obtain and enforce orders of custody and visitation across state lines." (Domestic Relations Law § 75 [2].) Courts have interpreted one of the goals of the UCC-JEA to be the prevention of "forum shopping." (Matter of Felty v Felty, 66 AD3d 64, 71-72 [2d Dept 2009]; see also Matter of Michael McC. v Manuela A., 48 AD3d 91, 95 [1st Dept 2007] [UCC-JEA "designed to eliminate jurisdictional competition between courts in matters of child custody"].)

The UCC-JEA defines the following terms, which are pertinent to the issues herein:

• " 'Child custody determination' means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child" (Domestic Relations Law § 75-a [3]);

• " 'Home state' means the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding" (Domestic Relations Law § 75-a [7]).

In addition, the statute empowers New York to make an "initial child custody determination" where: (a) New York is the {**63 Misc 3d at 811}"home state of the child on the date of the commencement of the proceeding"; and (b) "a court of another state does not have jurisdiction." (Domestic Relations Law § 76 [1].) The statute also provides that a court which has "made a child custody determination" has "exclusive, continuing jurisdiction" over a child custody and visitation matter until the child and parents no longer reside in the state whose court issued the determination, or there is no "significant connection" with, or "substantial evidence" available in said state. (Domestic Relations Law § 76-a [1].)

This matter presents a question of statutory interpretation, to wit: whether, under the UCC-JEA, New York or New Jersey had subject matter jurisdiction over this matter on April 22, 2016. It is long well-settled that "a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature," and "[a]s the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof." (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998] ["In construing statutes, it is a well-established rule that resort must be had to the natural signification of the words employed, and if they have a definite meaning, which [*5]involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning"], citing Tompkins v Hunter, 149 NY 117 [1896]; Feinman v County of Nassau, 154 AD3d 739, 740-741 [2d Dept 2017] ["when a question is one of pure legal interpretation of statutory terms . . . courts should construe clear and unambiguous statutory language (so) as to give effect to the plain meaning of the words used"].)

At all times since April 22, 2016, this court has had subject matter jurisdiction over the instant custody/visitation matter.

Against this statutory framework, and construing the statute in accordance with its clear and unambiguous language, there can be but only one conclusion: this court had subject matter jurisdiction over the parties' custody and visitation dispute as of April 22, 2016, because (1) the New Jersey court had not (and has never) rendered a "child custody determination" such that it obtained "continuing, exclusive jurisdiction" over the parties' custody dispute; and (2) New York was the children's "home state" as of April 22, 2016.

Ms. G.'s entire jurisdictional argument is premised upon her misguided claim that the February 26, 2015 order constitutes a{**63 Misc 3d at 812} "child custody determination" within the meaning of Domestic Relations Law § 76-a. However, the clear and unambiguous statutory language mandates the opposite conclusion. According to the statute, a "[c]hild custody determination" is a "judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child." (Domestic Relations Law § 75-a [3].) According to the Merriam-Webster Dictionary, the plain meaning of the phrase "provide for" is "to cause (something) to be available or happen in the future; to supply what is needed for (something or someone)." (Merriam-Webster Online Dictionary, provide for [https://www.merriam-webster.com/dictionary/provide%20for].) The February 26, 2015 order did not provide for custody or visitation at all; it did not "cause" custody to be available to Ms. G. or Mr. B., or to "supply" custody to either of them. To the contrary, the New Jersey court denied Ms. G.'s petition and did not even reach the issue of custody. The New Jersey court made not a single finding on custody, noting only that the issue could be addressed in 20 days, or if Ms. G. filed for custody upon her release from jail. The record is clear that the New Jersey court did not address the custody issue in 20 days, and Ms. G. did not again file for custody in New Jersey until September 2017, one year after this court issued the FOV providing for visitation to Ms. G. By all accounts then, giving effect to the plain meaning of the words in the UCC-JEA, this court issued the initial child custody determination, and, to date, is the only court that has provided for custody and visitation of the parties' children.

Under no read of the February 26, 2015 order, or view of the collective facts herein, did New Jersey issue a "child custody determination" (initial or otherwise) for which it obtained "exclusive, continuing jurisdiction" over these custody and visitation proceedings. Thus, contrary to Ms. G.'s argument, this court was not required by Domestic Relations Law § 75-i (1) to communicate with the New Jersey court on April 22, 2016, or at any time during the pendency of Ms. G.'s visitation proceeding, and its failure to do so was not fatal to the exercise of subject matter jurisdiction.

Ms. G.'s contention that the New Jersey court's February 26, 2015 order, and the prior [*6]orders of this court dismissing Mr. B.'s custody petitions in 2015 and 2016, constitute "law of the case" on the issue of subject matter jurisdiction is equally without merit. The only issue decided by the New Jersey court{**63 Misc 3d at 813} on February 26, 2015, was that, as of that date, the children had been residing in New Jersey for more than six months, a determination necessary for the exercise of jurisdiction by that court over the matter at that time. In this regard, five days later on March 3, 2015, Referee Schwartz properly dismissed Mr. B.'s custody proceeding because the children had not been residing with him in Brooklyn for six months prior to January 6, 2015. (Indeed, Referee Schwartz would have been constrained to dismiss the petitions even in the absence of the New Jersey order.) Neither the New Jersey court's statement on February 26, 2015, that it "retains jurisdiction over this matter," nor Referee Schwartz's dismissal of Mr. B.'s petition, amounts to a "law of the case" finding that New Jersey would retain jurisdiction over these issues for all time and under all circumstances. Indeed, the UCC-JEA does not provide for exclusive jurisdiction ad infinitum and without regard to the realities of the case. (See Domestic Relations Law § 76-a [1] [exclusive, continuing jurisdiction ends when either child and parents no longer reside in state, or there is no "significant connection" with, or "substantial evidence" available in state].)

Nor did the March 30, 2016 order dismissing Mr. B.'s custody petition of the same date constitute a law of the case finding on the issue of subject matter jurisdiction. Mr. B. did not have a full and fair hearing on the issue of subject matter jurisdiction, or any other issue. Rather, his March 30, 2016 petitions appear to have been summarily dismissed at the first appearance without an exploration of the controlling facts and circumstances. It is well-settled that the doctrine of law of the case attaches only to determinations made upon a full and fair hearing. (See generally Baldasano v Bank of N.Y., 199 AD2d 184, 185 [1st Dept 1993] ["(T)he doctrine of the law of the case applies only to legal determinations that were necessarily resolved on the merits in the prior decision"].)

Ms. G.'s argument that she objected to this court's jurisdiction throughout the proceedings is flatly belied by her actions. When she commenced her visitation proceeding on April 22, 2016, Ms. G. tacitly if not expressly conceded that this court had subject matter jurisdiction over the custody and visitation issues at that time. Indeed, in her April 22, 2016 petition, Ms. G. admitted that the children had been residing in Brooklyn with Mr. B. since December 2014. Thus, there can be no dispute that, as of April 22, 2016, New York was the children's "home state" and, therefore, this court properly accepted jurisdiction {**63 Misc 3d at 814}to make an initial custody determination. (Domestic Relations Law § 75-a [7]; see generally Matter of Slade v White, 133 AD3d 767, 768 [2d Dept 2015] ["Under the UCCJEA, home state jurisdiction is paramount, and whether to accept jurisdiction is a home state prerogative"].) Two years later, in March 2018, in apparent continued recognition that New York has jurisdiction over this matter (and that Brooklyn is the proper venue), Ms. G. commenced her custody proceedings in this court. For all that appears, Ms. G. did not raise any objection to this court's exercise of jurisdiction until the summer of 2018, when such objection was raised for the first time by her attorney. Having prevailed on her visitation proceeding in this court, based upon the facts that New York was (and is) the children's home state and a child custody determination had not been made as of April 2016, Ms. G. is precluded under the doctrine of estoppel against inconsistent positions from now asserting that this court [*7]lacked subject matter jurisdiction under the UCC-JEA to issue the FOV. (See Crespo v Crespo, 309 AD2d 727, 728 [2d Dept 2003] ["The doctrine of judicial estoppel or the prohibition against inconsistent positions prohibits a party from obtaining a favorable judgment and subsequently taking an inconsistent position simply because his or her interests have changed"]; Anonymous v Anonymous, 137 AD2d 739, 741 [2d Dept 1988] [same].)

Ms. G.'s attempt to have this custody and visitation dispute dismissed in this court and heard in New Jersey is unavailing and amounts to improper forum shopping prohibited by the UCC-JEA. New Jersey had not issued a child custody determination such that it had exclusive, continuing jurisdiction on April 22, 2016. Additionally, by her own admission, New York was the children's home state on that date. Indeed, had this court called the New Jersey court in April 2016 (assuming it was required to do so, and it was not), the New Jersey court would have been constrained to concede that New York had subject matter jurisdiction. Consequently, this court had subject matter jurisdiction over the instant custody and visitation dispute when Ms. G. commenced her visitation proceeding on April 22, 2016, and New York has had subject matter jurisdiction at all times since then.

The motion by respondent, C.D.G., is hereby denied in its entirety as without merit in fact or law.