Family Court, Monroe County, October 14, 2021

Michael D. Schmitt for petitioners.

Jon M. Stern for respondents.

Darcie Bahr, Attorney for the Child.

This decision and order supplements the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) conference held on the record on September 29, 2021, pursuant to Domestic Relations Law § 75-i between this court and the Honorable Gisela Laurent, Circuit Judge of the Circuit Court of the Ninth Judicial Circuit, in and for Orange County, Florida, all of the parties and New York counsel and petitioners' Florida counsel. John B and Barbara B (petitioner parents) sought to register an order of the Honorable Gisela Laurent, Circuit Judge of the Circuit Court of the Ninth Judicial Circuit, Orange County, Florida (case No. xx-xxxx-xx-xxxx) (the Florida order). Talia K and Corey K (respondent cousins) filed a timely objection to the registration. Both courts agreed that Florida was the home state of the subject child, Javonni B (DOB: xx/xx/2015). This court hereby reserves respondent cousins' right to renew their request for a hearing prior to registering the Florida order.

Procedural History

Javonni was a resident of Florida prior to respondent cousins filing for custody by order to show cause on February 1, 2021. This court denied the relief sought in their order to show cause and calendered the case to proceed by petition. Finding no emergency existed, this court returned Javonni to the petitioner parents in Florida by order to show cause, entered March 9, 2021. During the pendency of the case, Javonni continued to reside in Florida. All parties acquiesced to this court's exercise of jurisdiction (see Domestic Relations Law § 76-g [1] [a]; cf. Matter of Bridget Y. [Kenneth M.Y.], 92 AD3d 77, 86-87 [4th Dept 2011] [wherein at the commencement of the proceeding in New York, the parents had already commenced a proceeding in New Mexico]). This court entered temporary orders that provided respondent cousins with reasonable telephone contact and a short visit with Javonni at their expense. Petitioner parents thereafter sought to register the Florida order, which, inter alia, enjoined Javonni's removal from Florida. Respondent cousins filed a timely objection to the registration of the Florida order.{**74 Misc 3d at 398}

Upon receipt of the Florida order this court sent, by certified mail in accordance with Domestic Relations Law §§ 75-g and 77-d, the notice of request for registration of an out-of-state child custody or visitation order-UCCJEA to respondent cousins. Further, petitioner parents personally served respondent Talia K on September 28, 2021, who also accepted substituted service for respondent Corey K on the same day. This court "immediately [sought to] communicate with the [Florida] court" to address the issue of jurisdiction (see Domestic Relations Law §§ 75-i, 76-c [4]; 76-e).

Communication between Courts under the UCCJEA

In accordance with Domestic Relations Law §§ 75-i and 76-e the court stayed its proceedings and arranged for an on the record communication between the two courts, the parties and their counsel and the petitioner parents' counsel in Florida on September 13, 2021, at 9:30 a.m. The court sent a link to the virtual session via Teams application to all counsel, including respondent cousins' counsel, reflecting that the purpose of this scheduled court appearance was a UCCJEA conference (see Domestic Relations Law § 75-i [2]). On September 10, 2021, respondent cousins' counsel advised the court that he was not available, so the court, at his request, rescheduled the UCCJEA conference for September 29, 2021, pursuant to Domestic Relations Law § 75-i.^[FN1] The court also followed up with an email advising all counsel of the same.

Florida is the child's home state under the UCCJEA.

Although adoption is excluded under the UCCJEA (see infra), the UCCJEA was specifically designed to deal with all custodial disputes—even those of parents versus non-parents (see Matter of Bridget Y. [Kenneth M.Y.], 92 AD3d 77 [2011]). The UCCJEA was enacted in New York in 2001 to provide a remedy for interstate visitation and custody cases because lack of uniformity complicates the enforcement process. The UCCJEA also was enacted to harmonize state law with federal legislation namely the Parental Kidnaping Prevention Act (PKPA) which was enacted in 1980 to address the interstate custody jurisdictional{**74 Misc 3d at 399} problems that continued to exist (28 USC § 1738A). Both laws—uniform since their enactments—limit the scope of the enforcing court's inquiry to whether the decree court had jurisdiction and complied with due process in rendering the original custody determination. No further inquiry is necessary because [*2]neither the UCCJEA nor the PKPA allow an enforcing court to modify a custody determination (UCCJEA Prefatory Note, National Conf of Commissioners on Uniform St Laws at 5 [1997]).

After the communication between courts on September 29, 2021, this court found that Florida was Javonni's home state as defined by the UCCJEA (see Domestic Relations Law §§ 75-a [7]; 75-i, 76-c [4]). Petitioner parents are Javonni's biological maternal great-grandparents. Petitioner parents adopted Javonni on April 2, 2019, by final judgment of Circuit Court Judge of the Twentieth Judicial Circuit, Charlotte County (Hon. Mary C. Evans). Javonni resided in Florida from birth until he visited with Talia K, cousin of Javonni's (deceased) biological mother, Morgan B, and Talia's husband, Corey K, in New York. Javonni's visit began in New York on March 16, 2020, immediately before the implementation of state and federal COVID-19 restrictions.^[FN2]

The parties dispute whether Javonni returned to his home in Florida in May or June of 2020, yet do agree he was back home in Florida by June 22, 2020, and remained there until late July 2020. Petitioner parents executed a temporary guardianship agreement on July 24, 2020, and thereafter Javonni with respondent cousin, Talia K, returned to New York on July 25, 2020.

Javonni returned home again to Florida on October 5, 2020, to undergo a scheduled surgical procedure. In late October, petitioner parents agreed to have Javonni return to New York with respondent cousin Talia, so he might see snow before he began kindergarten in Florida the following year. Thereafter communications between the parties began to fray and when respondent cousins failed to exchange Javonni with his parents in Charlotte, North Carolina in January 2021, as planned, this custodial dispute arose.{**74 Misc 3d at 400}

Under the UCCJEA, jurisdiction lies in the home state of a child, absent an emergency. This court and the Florida court agree that Florida, not New York, is Javonni's home state. The Attorney for the Child advocating for Javonni's preference recognizes Florida as the child's home state. Nor is there a basis for this court to exercise emergency jurisdiction. Javonni's earlier

" 'mere physical presence . . . in this [s]tate is not a sufficient basis per se for the exercise of jurisdiction . . . There must, in addition, be an emergency that is real and immediate, and of such a nature as to require [s]tate intervention to protect the child[ ] from imminent physical or emotional danger' " (Matter of Bridget Y., 92 AD3d at 87, quoting Matter of Severio P. v Donald Y., 128 Misc 2d 539, 542 [Fam Ct, Richmond County 1985]; see Matter of Alger v Jacobs, 169 AD3d 1415, 1416-1417 [4th Dept 2019]; Matter of Fleet v Scarola, 221 AD2d 339, 339 [2d Dept 1995], lv denied 87 NY2d 965 [1996]; cf. Matter of Wells v Van Coutren, 200 AD2d 577 [2d Dept 1994] [the Appellate Division, Second Department remitted the matter to the trial court for a determination of whether the trial court should have exercised emergency jurisdiction in view of the child's credible threat of suicide]).

New York too is an inconvenient forum (see Domestic Relations Law § 76-f). The UCCJEA does not contemplate that "parents of a child should be obligated to travel to a distant State and to incur great expense and inconvenience in order to litigate their superior right to custody against a nonparent" (Mazur v Mazur, 207 AD2d 61, 66 [4th Dept 1994], lv denied 85 NY2d 803 [1995]).

Under Domestic Relations Law § 75-b adoption is governed by other laws.

The UCCJEA does not govern an adoption proceeding or a proceeding pertaining to the [*3]authorization of emergency medical care (see Domestic Relations Law § 75-b). The UCCJEA (enacted both in New York and Florida) remains the governing law of any interstate custodial dispute. The UCCJEA, however, was not the governing statute for the original Florida adoption petition and in fact did not prevent petitioner parents from seeking to confirm the adoption of Javonni in Florida since the{**74 Misc 3d at 401} UCCJEA specifically excludes adoptions.^[FN3] Although the UCCJEA governed the Florida and New York court jurisdictional determination on custodial/visitation issues concerning Javonni, it did not prohibit the confirmation of his adoption in Florida.^[FN4]

The Constitution of the United States of America requires that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State" (US Const, art IV, § 1). This court recognizes the Florida order and affords full faith and credit to the adoption—as it must. Petitioners are officially Javonni's parents.

Nonetheless even if this court found petitioner parents willfully violated a temporary order of this court, the ultimate question is whether the recent Florida order confirming Javonni's adoption divests New York State courts from continuing to exercise jurisdiction over this pending interfamilial custodial-visitation dispute between his parents and his cousins. The answer is yes since (a) a court of this state has determined that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection{**74 Misc 3d at 402} with this state and/or (b) a court of this state or a court of another state determined that the child, the [*4]child's parents and any other person acting as a parent do not presently reside in this state (see Domestic Relations Law §§ 75-a [7]; 76-a [1]). A "person acting as a parent" has had physical custody of a child for a period of six consecutive months, including any temporary absence, and "has been awarded legal custody by a court" or "claims a right to legal custody" (Domestic Relations Law § 75-a [13]). Here, Javonni's return to his parents' home in Florida in May or June of 2020, in part to undergo presurgical medical care, is not a "temporary absence" from New York within the meaning of the statute (such as a vacation outside of New York and/or Florida). Indeed "[t]he fact that a parent confers temporary custody of [a] child upon a nonparent does not give rise to a colorable claim of right to custody" (Mazur, 207 AD2d at 65).

Matter of Benzin v Kuty (109 AD3d 1175 [4th Dept 2013]) is instructive. In Matter of Benzin, the Court held that a pending family court custodial dispute between a biological mother and child was properly dismissed because father's wife adopted the child by order of Surrogate's Court divesting biological mother of all rights (citing Domestic Relations Law § 117 [1] [a]). Father and his wife failed to provide notice of the adoption to the mother as expressly required by Domestic Relations Law § 111 (3) (a). The Appellate Division for the Fourth Department held the Family Court lacked authority to vacate or ignore the adoption order, "inasmuch as that court could 'not arrogate to [itself] powers of appellate review' " (id. at 1176, quoting Dain & Dill v Betterton, 39 AD2d 939 [2d Dept 1972]; cf. Wells, 200 AD2d 577).

The Florida order confirmed the petitioners' earlier adoption of Javonni and enjoined Javonni from leaving Florida; this court's temporary order allowed visits, and only at respondent cousins' expense, so as to maintain the loving relationship between Javonni and respondent cousins. Since respondent cousins are not Javonni's custodians, and the court's temporary order afforded them limited visitation rights, the Florida order clearly overrides this court's determination.

Registration of the Certified Florida Order and Domestic Relations Law § 77-d Hearing Request

At the UCCJEA conference on September 29, 2021, this court granted petitioner parents' application to register the certified Florida order over respondent cousins' objection. Respondent{**74 Misc 3d at 403} cousins contest the validity of the registered order and timely requested a hearing (Matter of Pava v Atkinson, 180 AD3d 917 [2d Dept 2020], lv denied 35 NY3d 913 [2020]).

The Florida order provides, inter alia, as follows:

"(a) The Adoption executed by Judge Evans, Charlotte County, Florida case no. xx-xx-xxx on April 2, 2019 grants the Petitioners the privilege and legal rights to be the parents of the child, Javonni B;

"(b) No action was ever timely filed by any party having legal standing under Florida [Statutes] including but not limited to § 86.011; § 63.142 (4); § 63.182 and § 63.172 (1) (b);

"(c) The New York order issued on July 30, 2021, which granted the Respondents visitation with the child is invalid and unenforceable in Florida; and

"(d) A temporary and Permanent Injunction prevents the removal of this child from Florida without notice to the other party."

Significantly, the Florida court (Hon. Gisela Laurent) on September 29, 2021, both confirmed that it has not relinquished jurisdiction and that its determination has not been vacated, stayed, or modified. Further the Florida court, after addressing the petitioner parents' ex parte application, expressly dispensed with any notice requirement to the respondent cousins, and issued the Florida order that petitioner parents now seek to register. Respondent cousins object to this lack of notice by the Florida court. Under Domestic Relations Law § 75-g (1) (d), notice may be "prescribed by the law of the state in which service is made." More important, the Florida court did not require notice to the respondent cousins because the Florida order (as an order confirming the adoption of Javonni by the petitioner parents) is not governed by the UCCJEA. Again this court is not empowered to act in an appellate role, nor can it arrogate an appellate review of the Florida order (see Matter of Benzin v Kuty, 109 AD3d at 1176).

A "hearing" under Domestic Relations Law § 77-d is not sharply defined: The court, nonetheless, will allow respondent cousins to renew their application for an evidentiary hearing. At such hearing, this court shall confirm the registered Florida order unless respondent cousins establish that:

a. the issuing court did not have jurisdiction;

b. the child custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so; or{**74 Misc 3d at 404}

c. the person contesting registration was entitled to notice, but notice was not given in accordance with the standard of Domestic Relations Law § 75-g in the proceedings before the court that issued the order for which registration is sought.

Now, therefore, it is adjudged that a UCCJEA conference was held on the record on September 29, 2021, with all parties and counsel, the petitioners' counsel in Florida and the Honorable Gisela Laurent, Circuit Judge of the Circuit Court of the Ninth Judicial Circuit, for Orange County, Florida present, and thereby determined that Florida is the home state of the subject child, Javonni B (DOB: xx/xx/2015); and it is further ordered that this court hereby reserves respondent cousins' right to renew their request for a Domestic Relations Law § 77-d hearing by letter application, as they timely objected to the registration of the certified order of the Circuit Judge of the Circuit Court of the Ninth Judicial Circuit, Orange County, Florida (case No. xx-xxxx-xx-xxxx) (Hon. Gisela Laurent); and it is further ordered that this decision and order hereby supplements the record created with all parties and New York counsel, the petitioner parents' Florida counsel and the Honorable Gisela Laurent, Circuit Judge of the Circuit Court of the Ninth Judicial Circuit, in and for Orange County, Florida on September 29, 2021.

Indeed, the PKPA has been utilized by at least one New York court to enforce grandparents' rights, but such case is distinguishable (see Matter of Wells v Van Coutren, 200 AD2d 577 [2d Dept 1994] [wherein the Court declined to recognize a Pennsylvania determination on due process grounds of a grandfather who acted as a custodian to the child after her father's death under the PKPA. The Appellate Division, Second Department remitted the matter for a determination of whether the trial court should exercise emergency jurisdiction in view of the child's credible threat of suicide]). The PKPA states: "Before a child custody or visitation determination is made, reasonable notice and opportunity to be heard shall be given to the contestants . . . [including] any person who has physical custody of a child." (28 USC § 1738A [e].) Again, petitioners, not respondents, have retained custody of Javonni since his adoption.

Footnote 4:A court's lack of "jurisdiction is not waivable" and "may be raised at any stage of the action" (Moulden v White, 49 AD3d 1250, 1251 [4th Dept 2008] [brackets omitted]; see also Matter of Anna M. [Adam W.M.—Benjamin L.M.], 93 AD3d 671, 673 [2d Dept 2012] ["(A) default must be vacated once the movant demonstrates a lack of personal jurisdiction, and the movant is relieved of any obligation to demonstrate a reasonable excuse for the default and a potentially meritorious defense"]; Matter of Anthony C. v Schimke, 216 AD2d 939 [4th Dept 1995] [case remitted to Family Court to determine if it acquired jurisdiction over each parent]).