Matter of N.A. v A.U.

Family Court, Kings County

Decided on March 27, 2026

File No. 274203

Robert A. Markoff, J.

I. Introduction

In February 2025, an Uzbekistan court issued an order, upon a hearing, awarding custody of the subject children to the paternal grandparents. At that time, the mother and father lived in New York, and the paternal grandparents lived in Uzbekistan with the subject children. Sometime in December 2025, the subject children were brought to New York where they currently reside with their paternal grandparents and the father. In December 2025, the mother petitioned this Court for a writ of habeas corpus seeking an immediate custody hearing. This Court, inter alia, directed the parties to show cause why this proceeding should not be dismissed for lack of subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified in article 5-A of the Domestic Relations Law.

Domestic Relations Law § 76-b allows a court of this state to modify a foreign custody determination only if this state has jurisdiction to make an initial custody determination under Domestic Relations Law § 76(1)(a) or (b), and either (1) the foreign court determines it no longer has exclusive and continuing jurisdiction, or (2) a court of this state or the foreign court determines that the parties and children no longer reside in the foreign state. Applying that statute here, this Court may not modify the Uzbekistan court order because this state lacks jurisdiction to make an initial custody determination under Domestic Relations Law § 76(1)(a) or (b). However, if the subject children, along with a parent or a person acting as a parent, continue to live in this state for a consecutive period of six months prior to the filing of a modification petition, and all necessary parties continue to reside here, Domestic Relations Law § 76-b(2) would permit a court of this state to assume jurisdiction; significantly, this jurisdiction could be assumed without the need to await an order from an Uzbekistan court declining jurisdiction or the need to conduct a jurisdictional conference with an Uzbekistan court. Given the possibility that this state may acquire jurisdiction as set forth herein, the mother's custody petitions must be dismissed without prejudice.

II. Background

The mother and the father were married in January 2018 and obtained a divorce decree in New York sometime in late 2018. They have four children in common, two of whom were born during their legal marriage, and two of whom were born after their legal divorce.FN1 All four children were born in New York.

Sometime in 2019, the mother brought the two oldest children — the subject children Z. (DOB XX/XX/2018) and K. (DOB XX/XX/2018) (hereinafter “the twins”) to Uzbekistan. The father alleges, in effect, that he and the mother agreed to temporarily leave the twins with relatives in Uzbekistan with the intention to retrieve them once they got settled in New York. In contrast, the mother alleges that they visited Uzbekistan so that the children could visit their grandparents. The mother alleges that when it was time to return to New York, the paternal grandparents withheld the twins' travel documents, and she returned to New York without the twins.

In 2020, the mother commenced a custody proceeding in Uzbekistan, and the Uzbekistan court thereafter awarded her custody of the twins. Even so, the mother asserts that the birth of her two youngest children in 2020 and 2022 prevented her from returning to Uzbekistan to retrieve the twins. The attorney for the twins (AFC) and the father assert that the mother once again left the twins in Uzbekistan and the twins ended back in the care of the paternal grandparents.

Even though the mother had already been awarded custody of the twins by an Uzbekistan court in 2020, the mother filed in September 2024 in New York for custody of the twins. At that time, this Court noted that it lacked subject matter jurisdiction over custody of the twins since the twins lived in Uzbekistan and had been doing so for many years (see Domestic Relations Law § 76).

In February 2025, the Uzbekistan court issued an order which, in effect, modified its prior determination and awarded custody to the paternal grandparents. In December 2025, the mother became aware that the twins were in New York with the father. On December 15, 2025, the mother filed the underlying petitions for writs of habeas corpus. Multiple court appearances ensued wherein the father appeared either with or without counsel and objected to personal jurisdiction for lack of proper service.

Once this Court obtained personal jurisdiction over the father, the father presented the translated Uzbekistan court order dated in February 2025 providing, in effect, that the paternal grandparents were awarded custody of the twins. This Court sua sponte issued a motion dated January 14, 2026, directing the mother, father, and AFC to “show cause why this Court should not dismiss the mother's writ petitions for lack of subject matter jurisdiction under the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act; Domestic Relations Law §§ 76 et. al.) or alternatively exercise emergency jurisdiction pursuant to DRL 76-c.”FN2 In papers submitted to the court, the AFC asserts that based upon her interviews with the subject children and the father, the paternal grandparents are currently residing in New York with the children and the father.

III. Analysis

Recognition and Enforcement of Uzbekistan Custody Order

For purposes of applying the UCCJEA, a court of this state must treat a foreign country “as if it were a state of the United States” (Domestic Relations Law §75-d[1]). Thus, “a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this article must be recognized and enforced” (Domestic Relations Law §75-d[2]). However, a court of this state need not apply the UCCJEA to a foreign court order if “the child custody law of a foreign country as written or as applied violates fundamental principles of human rights” (Domestic Relations Law § 75-d[3]).

The mother's contention that the February 2025 Uzbekistan order which awarded custody to the paternal grandparents should not be recognized or enforced because the custody law of Uzbekistan as written or as applied violates fundamental principles of human rights is without merit. The order evinces that the Uzbekistan court conducted a full hearing in which the mother was represented by counsel. The order shows that the Uzbekistan court considered the best interests of the children together with the rights and responsibilities of parents, the expressed wishes of the children, the change in circumstances since an initial custody order issued in July 2020 awarded custody to the mother, the circumstances under which the paternal grandparents came into the care and custody of the children, and the results of a forensic evaluation. The factors considered by the Uzbekistan court align with those considered by a court of this state and do not violate fundamental principles of human rights. The Uzbekistan order is entitled to recognition and could be entitled to enforcement if properly registered under Domestic Relations Law § 77-d (see Matter of Gallagher v Pignoloni, 145 AD3d 781, 784 [2d Dept 2016] [unregistered Italy court order recognized for purposes of UCCJEA jurisdiction but not enforcement]).

Home State Jurisdiction & Exclusive, Continuing Jurisdiction

The issue of child custody jurisdiction under the UCCJEA involves subject matter jurisdiction (ee Hook v Snyder, 193 AD3d 588, 589 [1st Dept 2021]; Matter of Nemes v Tutino, 173 AD3d 16, 22-23 [4th Dept 2019]). “[A] defect in subject matter jurisdiction may be raised at any time by any party or by the court itself, and subject matter jurisdiction cannot be created through waiver, estoppel, laches, or consent” (Caffrey v North Arrow Abstract & Settlement Servs., Inc., 160 AD3d 121 [2d Dept 2018]; see Matter of Alda X. v Aurel X., 215 AD3d 1029 [3d Dept 2023] [objection to subject matter jurisdiction under UCCJEA considered for first time on appeal]; Hook v Snyder, 193 AD3d at 589; Matter of Nemes v Tutino, 173 AD3d at 23).

Domestic Relations Law § 76 provides, in pertinent part, that a court of this state has jurisdiction to make an initial child custody determination only if 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 commencement of the proceeding and the child is absent from this state but a parent or a person acting as a parent continues to live in the state; and a court of another state does not have initial child custody jurisdiction or a court of the home state has declined to exercise jurisdiction. Domestic Relations Law § 75-a(7) defines “home state” to mean, in pertinent part, 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.

Contrary to the mother's contentions, New York is not the twins' home state. Even though the twins were born in New York, it is undisputed that they did not reside in New York for at least six consecutive months immediately before the commencement of any of the mother's petitions. Indeed, the twins were only present in the state for days prior to the mother's filing of the petition for writs of habeas corpus in December 2025. Rather, Uzbekistan is the twins' home state. Moreover, the twins had been living in Uzbekistan for four years prior to the issuance of the Uzbekistan order in February 2025. Given that Uzbekistan, as the twins' home state, has already made initial child custody determinations in accordance with Domestic Relations Law § 76, Uzbekistan has exclusive, continuing jurisdiction under Domestic Relations Law § 76-a (see Matter of Alda X. v Aurel X., 215 AD3d 1029 [3d Dept 2023]; Matter of Gallagher v Pignoloni, 145 AD3d at 784; Matter of Saunders v Hamilton, 75 AD3d 1172 [4th Dept 2010]).

Jurisdiction to Modify a Foreign Custody Determination

Domestic Relations Law §76-b provides, inter alia, “a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under Domestic Relations Law 76(1)(a) or (b).” New York would have jurisdiction to make an initial custody determination under section 76(1)(a) if New York was the “home state” of the twins on the date of commencement of the proceeding or under section 76(1)(b) if a court of Uzbekistan declined jurisdiction (id). As already set forth above, New York was not the children's “home state.” A court of Uzbekistan has not declined to exercise jurisdiction (cf. Matter of McKissen v DeLeon, 214 AD3d 1367, 1368 [4th Dept 2023][court properly modified Florida custody order under Domestic Relations Law § 76-b(2) because child lived in New York for more than six months prior to commencement of petition and both parents resided in New York]; Matter of Sneed v Campagn, 211 AD3d 957, 958 [2d Dept 2022][court properly applied Domestic Relations Law § 76-b(2) in determining that it had jurisdiction to modify custody order issued by another state]; Matter of Lewis v Martin, 134 AD3d 1179, 1181 [3d Dept 2015] [same]).

Given the inapplicability of Domestic Relations Law § 76(1)(a) or (b), this Court need not reach subsection 2 of 76-b to determine whether the children, parents or persons acting as parents are “presently resid[ing]” in New York (Matter of Briggs v Briggs, 171 AD3d 741, 743 [2d Dept 2019][determining that “reside” implies “something more than temporary or physical presence with some degree of permanence and an intention to remain”]; cf. Uniform Child Custody Jurisdiction & Enforcement Act [1997] § 202, Comment [The phrase 'do not presently reside' means “that the named persons no longer continue to actually live within the State” and is not used in the sense of a technical domicile]). Accordingly, Domestic Relations Law § 76-b does not confer jurisdiction to this state to modify the Uzbekistan order dated February 2025.

Even so, this Court recognizes that if the children, both parents, and the paternal grandparents continue to live in New York, this Court may ultimately acquire jurisdiction under Domestic Relations Law § 76-b(2). Given that possibility, dismissal of the mother's petitions for lack of subject matter jurisdiction must be without prejudice.

Emergency Custody Jurisdiction

Domestic Relations Law § 76-c authorizes the exercise of temporary emergency jurisdiction “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.” “For a New York court to exercise temporary emergency jurisdiction, the mere physical presence of the children in this state 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 state intervention to protect the children from imminent physical or emotional danger” (Matter of Baptiste v Baptiste, 179 AD3d 669 [2d Dept 2020], quoting In re Bridget Y, 92 AD3d 77, 87 [4th Dept 2011]).

Here, the mother's speculation that the father intends to send the twins back to Uzbekistan does not present an emergency.FN3 According to the 2025 Uzbekistan order, the twins were adequately cared for by the paternal grandparents in Uzbekistan, and the AFC reports that the twins wish to remain in the care of the paternal grandparents. In the absence of an emergency, this Court may not invoke emergency jurisdiction (Matter of Baptiste v Baptiste, 179 AD3d at 670).

Other Issues

A petition for a writ of habeas corpus is not the appropriate vehicle to litigate the underlying custody and visitation disputes. The mother is unable to show a superior right to custody or that the children are being illegally detained by the father or the paternal grandparents. Indeed, the Uzbekistan custody order dated February 2025 awarded custody to the paternal grandparents. Under the circumstances, the mother cannot establish a right to habeas corpus relief (see Matter of Toussaint v Doucey, 199 AD3d 693, 694 [2d Dept 2021]).

Contrary to the AFC's contention, since this Court must dismiss the mother's petitions for lack of subject matter jurisdiction under the UCCJEA, it is unnecessary for the paternal grandparents to be added as additional respondents to this proceeding. However, if this state acquires jurisdiction under the UCCJEA, the paternal grandparents are “persons acting as parents” and would be necessary parties (see Domestic Relations Law § 76-b[2]).

Accordingly, it is hereby:

ORDERED that the petitioner mother's custody petitions (Docket Nos. V-20046-24 and V-20048-24) are hereby dismissed without prejudice to file, if appropriate, a modification petition under Domestic Relations Law § 76-b with joinder of the paternal grandparents as necessary parties.

ORDERED that the petitioner mother's petitions for writs of habeas corpus (Docket Nos. V-25032-25 and V-25033-25) are hereby dismissed without prejudice to file, if appropriate, a modification petition under Domestic Relations Law § 76-b with joinder of the paternal grandparents as necessary parties.

Dated: March 27, 2026

ENTER

Hon. Robert A. Markoff, J.F.C.