In the Matter of MICHAEL McC., Appellant, v MANUELA A., Respondent.
First Department, New York
December 27, 2007
848 N.Y.S.2d 147
Segal & Greenberg LLP, New York City (Philip C. Segal of counsel), for appellant.
Jeffrey Cylkowski, New York City, for respondent.
OPINION OF THE COURT
Catterson, J.
This appeal arises out of a Family Court determination that the court lacked jurisdiction in a custody modification proceeding after the mother fled New York with her five-year-old son to Italy in the middle of the proceeding. We reverse, on the law, and as a matter of public policy.
Petitioner-appellant father, a United States citizen, and respondent mother, an Italian national, who is also a United States citizen, were married on August 3, 1992 in the United States. They have one child, Liam, who was born in Italy in July 2001 and who has dual citizenship.
On April 6, 2004, a judgment of divorce was entered in New York County. The court determined however that it had no jurisdiction over custody issues because Liam had lived in New York for only 9 out of his 27 months since birth. Thus, there were no court orders in New York with regard to custody, visitation or maintenance. Subsequent to filing divorce proceedings in New York, the mother filed parallel proceedings in Rome and the father consented to the court in Rome entering orders for custody and visitation.
On December 2, 2005, the Civil Court of Rome granted the divorce and awarded the mother sole custody of Liam. The order permitted the mother to decide whether she wanted to reside in Italy or in the United States and provided for the father to have visitation under both circumstances. On July 14, 2006, the father filed an appeal in the Appeal Court of Rome requesting joint custody of Liam and for a change of visitation.
Meanwhile, as of January 2005, the mother (with Liam), and the father were living separately in New York. On August 16, 2006 the mother petitioned Family Court in New York to (1) modify the Italian court‘s order of visitation and (2) to suspend
On or about March 6, 2007, two days before the Family Court‘s determination that the mother‘s allegations of abuse were unfounded, the mother fled with Liam to Italy in violation of a specific court order, dated January 22, 2007, not to take the child out of New York State. Thereafter, on March 8, 2007, the father filed a violation petition against the mother under the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter referred to as UCCJEA). Subsequently, the court dismissed the family offense petition filed by the mother. It also issued three orders: (1) stating that New York was Liam‘s home state and that the father was authorized to accept immediate physical custody of him from law enforcement personnel upon execution of the warrant directing Liam‘s seizure; (2) awarding the father temporary legal custody; and (3) stating that the mother‘s removal of Liam to Italy violated the court‘s express order, was contrary to the law of New York and was wrongful, directing her to return the child to New York, and requesting state and federal authorities as well as the Italian authorities to assist in the enforcement of the order.1 On March 22, 2007, the mother‘s attorney appeared in Family Court alone and indicated on the record that the mother had fled to Italy because “she does not believe she is getting a fair hearing [in Family Court].”
Meanwhile, in Italy, the mother had appeared before the Appeal Court of Rome on March 8, 2007 to get an interim ruling that she still had sole custody of Liam, and to reopen the investigation into her abuse allegations.
Thereafter, on April 6, 2007, the Family Court decided, sua sponte, to reconsider the propriety of the warrants and orders and calendared the matter for April 17, 2007 to hear oral argument. At this point, the court vacated the order granting temporary custody to the father, as well as the order directing that Liam be returned to the United States on the ground that the court did not have the legal authority to issue them since the Italian court had ordered that the mother have sole custody. It did not vacate the order for the arrest of the mother since she had “clearly violated th[e] [family] court‘s order” by taking
After hearing oral argument on April 17th and April 25th, the court dismissed the mother‘s petition for modification of an order of visitation of another court due to both her failure to appear before the court and the fact that the child abuse allegations were deemed to be false. The court also determined that the court‘s prior orders would be vacated to delete any direction that Liam be returned to New York and/or placed in the father‘s custody.
In analyzing whether the father‘s petitions should be dismissed, the court commented on the “very detailed and explicit” custody order of the Italian court that contemplated the mother “living possibly in the United States with Liam, living possibly in Italy with Liam.” The court then concluded that there was nothing in that order that prohibited the mother “going back and forth.”2 Notwithstanding this ruling, the Family Court expressly determined to leave the warrant previously issued for the mother‘s arrest in effect.
On May 11, 2007, the father moved for an order directing that his petition for sole custody of Liam be calendared for an inquest and a final disposition consistent with Liam‘s best interests. In an oral decision on the record on June 12, 2007, the Family Court denied the motion for an inquest, vacated all outstanding arrest warrants, and sua sponte dismissed the proceeding in all respects. The court concluded that, while it might have jurisdiction to modify custody and enforce visitation if the mother returns, it had no “legal authority” to do so until then because she had gone to Italy and the Italian court had given her that choice.
On appeal, the father asserts that Family Court did and does have jurisdiction, that his cross petition was properly before the court and that Family Court improperly denied the inquest on custody. For the reasons set forth below, we agree.
The UCCJEA, which replaced the Uniform Child Custody Jurisdiction Act (hereinafter referred to as UCCJA) as of April 28, 2002, is codified in
Specifically,
Here, there is uncontroverted evidence that the parties, mother, father and child, were living in New York since January 2005, a period of 19 months prior to the mother‘s petition for a modification of the initial custody order, and 22 months prior to the father‘s cross petition for sole custody. Thus, the record establishes that New York has jurisdiction in this custody modification proceeding. Moreover, the mother‘s flight to Italy cannot deprive New York of continuing jurisdiction in this proceeding so long as the father resides here. (See Vernon v Vernon, 100 NY2d 960 [2003] [where the court relied upon the fact that the father continued to reside in New York in establishing its jurisdiction over custody modification].)
On appeal, however, the mother argues that “home state” notwithstanding, the New York court does not have jurisdiction because the father‘s appeal of the Italian court‘s sole custody order is pending in Rome. She relies on
“a court of this state may not exercise its jurisdiction under [article 5-A] if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this article, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum . . . .”
The mother‘s assertion is correct in that while a New York court may have jurisdiction based on a “home state” determi-
In this case, the mother‘s reliance on
In this case, when the appeal was filed by the father in July 2006, the Italian court did not have jurisdiction “substantially in conformity” with the UCCJEA since by that time New York, not Italy, was the “home state.” In July 2006, both parties and Liam had been living in New York for approximately 18 months. (Cf. Vanneck v Vanneck, 49 NY2d 602 [1980].)5
It is also worth noting that the mother‘s reliance on Matter of Plum v Plum (216 AD2d 302 [1995]) and Matter of Kotary v La-
varnway (309 AD2d 1236 [2003]) is meritless. In these cases, jurisdiction was in substantial conformity with the UCCJEA insofar as the subject states were indisputably the child‘s “home state.”
Further, contrary to the mother‘s argument, the court also erred in ruling New York to be an inconvenient forum pursuant to
More importantly, while the court below made much of the Italian order granting the mother the choice of where to live with Liam, it erred in concluding that the choice of residence locations also gave the mother a choice of jurisdictions, and that New York therefore lost its jurisdiction when the mother left for Italy. In April of 2004, the Italian court was the proper jurisdiction for the initial custody proceeding because the child had lived in New York for only 9 out of his 27 months since birth,
To affirm the order of the Family Court would essentially give the mother a choice of jurisdictions, and thus the concomitant right to disregard any orders of the court of which she availed herself when she failed to obtain the desired outcome. It is precisely to avoid situations like this that the UCCJEA was enacted.
Finally, contrary to the mother‘s assertion, Croll v Croll (229 F3d 133 [2000]) and the Hague Convention do not apply to the case at bar because the present proceeding was expressly brought in state court under the UCCJEA and was not an action brought under the Hague Convention. In any event, Croll and the Hague Convention apply to situations where a child is wrongfully removed from a foreign country, brought to and then retained in the United States. Here, since the child‘s habitual residence is found within the United States the Hague Convention and Croll simply bear no relevance.
Accordingly, order, Family Court, New York County (Karen I. Lupuloff, J.), entered on or about June 12, 2007, which dismissed petitioner‘s cross petition for modification of a custody order issued by a foreign court, should be reversed, on the law, without costs, the cross petition reinstated and the matter remanded for further proceedings consistent with the decision herein, including a custody inquest.
Lippman, P.J. (dissenting in part). The relief the majority would afford petitioner father on his cross petition seeking to modify the child custody decree of the Italian court is, at the very least, premature. It rests upon an assertion of jurisdiction that would, on this record, appear to be forbidden by
As the majority observes,
“if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this article, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum.”
The Italian proceeding respecting custody of the subject child was commenced in April 2004 when, as the majority recognizes, Italy was indisputably the “home state” of the child; and that proceeding evidently continues, the father having filed within it an apparently still-pending appeal challenging the Italian court‘s award of sole custody to respondent mother. Inasmuch as there is no evidence that the duly commenced Italian custody proceeding has been concluded, or stayed in deference to the New York proceeding, there exists no basis to conclude that an assertion of jurisdiction by this State‘s Family Court to modify custody would not run afoul of the clear prohibition set forth in
Contrary to the majority‘s “suggestion,” a foreign state‘s exclusive, continuing jurisdiction under the UCCJEA does not depend upon its adherence to appellate procedures similar to those followed in this State.1 Moreover, even if petitioner father‘s appeal were properly viewed as a separate proceeding for modification of the Italian custody decree,2 there would still exist no ground to conclude that at the time the appeal was filed the Italian court did not have jurisdiction in substantial conformity with
While I join the majority in strongly disapproving respondent‘s flight to Italy with the child in evident anticipation of the dismissal of her family offense petition and in violation of a Family Court order, the proper, prudent and, indeed, statutorily mandated course in this matter, is not to proceed headlong to a hearing in this State‘s courts on the merits of the cross petition, but to remand the matter with the direction that Family Court communicate with the Italian court to determine whether the custody proceedings in that court are still pending (
Friedman, Sullivan and Gonzalez, JJ., concur. Lippman, P.J., dissents in part in a separate opinion.
Order, Family Court, New York County, entered on or about June 12, 2007, reversed, on the law, without costs, the cross petition for modification of a custody order issued by a foreign court reinstated and the matter remanded for further proceedings consistent with the decision herein, including a custody inquest.