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How do I get custody if my spouse and I live in different states and how do you determine Home State
July 14, 2017
In order to provide guidance as to what is HOME STATE in an jurisdicitonal dispute involving cusotdy and two different states, below provided is a decision was on a case I appeared on that was was publishedin the New York Law Journal as a slip decision and also republished in Justia Law. [*1] M.G. v C.M. 2017 NY Slip Op 50745(U) Decided on June 2, 2017 Supreme Court, Kings County Sunshine, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on June 2, 2017
Supreme Court, Kings County
Attorneys for Plaintiff
65 Broadway, Suite 706
New York, New York 10006
Rhonda J. Panken, Esq.
Attorney for Defendant
106 West 32nd Street, 2nd Floor
New York, New York 10001
Jeffrey S. Sunshine, J.
The following papers numbered 1 to 6 read herein:
Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 1, 2
Opposing Affidavits (Affirmations) 3
Reply Affidavits (Affirmations) 4
Other Papers_Plaintiff's Sur-Reply dated 5/13/17 and Defendant's "Reply" Affidavit dated 5/15/17 5, 6
After oral arguments on two (2) court dates [May 12, 2017 and May 25, 2017], which took place by live-streaming video link between this Court and the First Judicial District Court in Santa Fe, New Mexico, this Court is called upon to determine whether New York or New Mexico is the "home state" under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) [(28 USC § 1738A, as added by Pub. L. 96—111, 94 U.S. Stat. 3569, and amended in various sections of titles 22 and 28 of the United States Code; Domestic Relations Law article [*2]5—A)] of the parties' minor child who is fifteen (15) months old.
The plaintiff , a registered nurse, and the defendant, a photographer,[FN1] were married on October 31, 2014 in Brooklyn, New York. At this time there is no documentation before the Court indicating the parties' ages.[FN2] They have one (1) female child: Z.M.M., born February 12, 2016, who is currently fifteen (15) months of age. Plaintiff-mother alleges that the defendant has been unemployed throughout the marriage. Plaintiff-mother was employed during the marriage in the nursing profession both in New York and subsequently in New Mexico. It is undisputed that neither of the parties are currently employed.
Plaintiff commenced a prior action for divorce in Kings County, New York on August 19, 2016 by filing a summons. It is undisputed that defendant was never served with the summons in that divorce action and the only other filing was a consent to change attorney filed by plaintiff on November 10, 2016.[FN3]
The plaintiff commenced this action for divorce by filing a summons and verified complaint on March 28, 2017 and an amended summons with notice and a verified complaint on April 10, 2017. On March 31, 2017, defendant-father commenced a divorce proceeding in New Mexico. Defendant-father filed an emergency application for custody in New Mexico on April 11, 2017. Plaintiff filed a request for judicial intervention on April 21, 2017.
On May 5, 2017, plaintiff's counsel filed an order to show cause [motion sequence No.2] seeking an order granting the following relief: "a. Temporary custody of the unemancipated Petitioner [sic] of the marriage, to wit: [name redacted by Court], 14 months, born 02/12/2016; b. Temporary child support in the amount of $475.00 per month as and for the support of the unemancipated Petitioner [sic] of the marriage, pursuant to Section 240(1-b) of the Domestic Relations Law; c. Temporary maintenance in the amount of $699.00 per month as and for the support of the Plaintiff, pursuant to Domestic Relations Law Section 236(B)(6); d. Exclusive use and possession of the marital residence [address redacted by Court], Brooklyn, NY and thereafter, on June 1, 2017, at [address redacted by Court] Brooklyn, NY, pending the final determination of the above-captioned action for divorce, pursuant to Domestic Relations Law Section 234; e. Directing the Defendant to pay interim counsel fees, pursuant to Domestic Relations Law Section 237(d), in the amount of $10,000.00 and for all costs related to the appointment of an attorney for the child and forensics; f. Directing the Defendant to pay interim [*3]counsel fees, pursuant to Domestic Relations Law Section 237(d), in the amount of $30,000.00; g. Emergency Temporary Custody to the Mother with visitation to the Father in Kings County New York, and that no visitation shall occur outside New York. [sic] Together with such other and further relief as to this Court may seem just and proper; and it is further [sic]; h. Motion to Consolidate the divorce and custody action of Plaintiff Mother filed previously on August 19, 2016. [sic] and ask for an extension of time to serve said pleading no later than ten days for [sic] the date of execution of this order.) Plaintiff's counsel annexed a handwritten affirmation of emergency and affirmed that "[p]ursuant to URTC [sic] section 202.8 [sic] your affirmant states in good faith that a temporary injunction needs to be had in that significant prejudice to the party (Plaintiff) will be had if your affirmant gave notice to the Defendant herein of the date and place of this application sufficient to give Defendant time to respond." The Court signed the emergency order to show cause on May 5, 2017 without notice pursuant to 22 NYCRR 202.7, based upon plaintiff's argument that she feared the defendant-father would be able to remove the child from the jurisdiction without an order of temporary custody, and ordered that, pending the return date, the child Z.M.M. "shall not be removed by the Defendant from her present residence [address redacted by Court.]" The Court did not grant temporary custody ex parte. Plaintiff's counsel notified the Court that the defendant-father had filed an action in New Mexico and that the matter was scheduled before Judge Sylvia F. Lamar on May 12, 2017.[FN4] After the May 5, 2017 emergency application, this Court, given the UCCJEA issue regarding jurisdiction over the custody issues, telephoned Judge Lamar who is presiding over the New Mexico action to arrange for video conferencing of the May 12, 2017 court appearance between New Mexico and New York. The Court signed the order to show cause, made returnable on May 12, 2017 at 10:30 a.m., and directed service on defendant by next business morning delivery on or before May 5, 2017.[FN5] The May 12, 2017 return date and hearing time of 10:30 a.m. was selected by this Court to facilitate a live-streaming video joint hearing on the UCCJEA jurisdictional question as it related to the application for custody.
On May 8, 2017, defendant's counsel filed an order to show cause [motion sequence #3] seeking an order for the following relief: "a. Granting Defendant's motion to dismiss Plaintiff's action filed in Kings County, under Index No.: [REDACTED BY COURT] upon the ground that there is a prior action for divorce and ancillary relief pending between the same parties in the state of New Mexico, pursuant to CPLR 3211(a)(4) and other relevant sections of the CPLR and DRL; and b. Granting Defendant's motion to dismiss Plaintiff's action in its entirety upon the ground that Plaintiff has failed to meet New York's residency requirements pursuant to DRL 230 and CPLR 3211(a)(7) and the other relevant sections of the CPLR; and c. Granting Defendant's motion to dismiss the New York action in its entirety in the interest of substantial justice upon the ground that the claims raised in the New York action should be heard before the New Mexico courts pursuant to CPLR 327(a) and DRL 76-f (forum non conveniens), and the other relevant [*4]sections of the CPLR and DRL; and d. Granting a stay of the New York action pursuant to CPLR 327, 3211(a)(4); 2201; and DRL 76-e and 75-f; and e. Pursuant to CPLR 2201 and 3103, and DRL 75-e, pending the hearing and determination of the within Order to Show Cause, granting Defandant an interim stay of the New York action, including but not limited to discovery, and restraining and enjoining Plaintiff and/or her agents, representatives or attorneys and other third parties from taking any further steps related to the prosecution of the New York action, except for the briefing and argument of the within Order to Show Cause, until further Order of this Court or pursuant to the written agreement of the parties, without prejudice to the making of a separate application by Defendant, if necessary, to ensure Defendant's and the child's return to New Mexico; and f. Setting an expedited briefing schedule for this Order to Show Cause; and g. Awarding Defendant counsel fees, costs and disbursements for the making and prosecution her [sic] Order to Show Cause in an amount not less than $10,000; and h. Granting Defendant such other and further relief as the Court may deem just and proper." The Court signed the defendant's order to show cause made returnable on May 12, 2017 and set the following briefing schedule: answering papers by May 10, 2017 at 5:00 p.m. by e-mail (on consent of plaintiff's counsel) and reply papers by May 12, 2017 at 9:30 a.m. Plaintiff waived, on the record, any claim of improper notice pursuant to 22 NYCRR 202.7.
Plaintiff filed an affidavit in opposition dated May 10, 2017 and defendant's counsel filed an affirmation in reply dated May 11, 2017. With permission of the Court, the plaintiff filed a sur-reply dated May 13, 2017 and the defendant filed a "reply" affidavit dated May 15, 2017.
The New York Court and the New Mexico Court held a joint live-streaming video conference hearing on May 12, 2017. The parties are each represented by counsel in New York and in New Mexico. At the close of oral argument on the jurisdictional issue of the child's "home state" under the UCCJEA, plaintiff's counsel presented an affidavit signed by plaintiff which had not previously been provided to the New York Court or to defendant's New York counsel which, plaintiff's counsel represented, included an allegation by plaintiff-mother that defendant-father engaged in an act of sexual violence against her during the marriage.
To provide defendant's counsel with a full opportunity to review and to respond to the plaintiff's affidavit proffered by plaintiff's counsel on the record, the New York Court adjourned the matter until May 25, 2017.
The following facts are not in dispute between the parties: they were married on October 31, 2014; their daughter was born on February 12, 2016 in New York; on July 14, 2016 defendant-father moved to New Mexico; from July 14, 2016 until October 21, 2016 the plaintiff-mother and the parties' infant daughter remained in New York; on October 21, 2016 the plaintiff-mother and the parties' infant daughter moved to New Mexico where they resided until March 25, 2017; on March 25, 2017 plaintiff-mother left New Mexico with the parties' infant daughter and returned to New York. The plaintiff-mother and the parties' infant daughter resided in New Mexico for five (5) months and five (5) days.[FN6]
The remaining facts presented and argued by the parties in their respective written [*5]submissions and at oral argument relate to other prayers for relief sought in their orders to show cause but are not responsive to the issue before the Court: does the child have a "home state" as defined by the UCCJEA and, if so, is that "home state" New York, as argued by plaintiff-mother, or New Mexico, as argued by defendant-father.
The question before the Court is a two-pronged test: whether jurisdiction exists under DRL 76 and, if so, whether any succeeding sections such as DRL 76-f (inconvenient forum); 76-g (jurisdiction declined because of unjustifiable conduct), or 76-e (simultaneous proceedings in another state) make it improper for the Court to exercise jurisdiction in favor of another state. DOES NEW YORK HAVE JURISDICTION
Domestic Relations Law 76, as relevant here, provides that:1. Except as otherwise provided in section seventy-six-c of this title, a court of this state has jurisdiction to make an initial child custody determination only if:
(a) 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 the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state [emphasis added by Court];
(b) a court of another state does not have jurisdiction under paragraph (a) of this subdivision, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section seventy-six-f or seventy-six-g of this title, and:
(i) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(ii) substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;
"Home state" is defined in Domestic Relations Law 75-a(7) as follows:7. "Home state" means 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. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period [emphasis added by Court].
"Parent or a person acting as a parent" is defined in Domestic Relations Law 75-a(13) as follows:
13. "Person acting as a parent" means a person, other than a parent, who:(a) has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and
(b) has been awarded legal custody by a court or claims a right to legal custody under the law of this state.
It is clear that New Mexico was never the "home state" of the child because the child was only physically present in New Mexico for five (5) months and five (5) days. The statute is [*6]extremely clear that the only time a child can have a "home state" without meeting the six (6) month requirement is when the child was born in the State and is less than six (6) months old at the date of commencement. Here, the child was not born in New Mexico, is older than six (6) months and was not present in New Mexico for six (6) months.
Plaintiff-mother contends that New York remained the child's "home state" because, she argues, the consecutive five (5) months and five (5) days that she and the child were present in New Mexico from October 21, 2016 to March 25, 2017 was a "period of temporary absence". To have "home state" jurisdiction under DRL 76(1)(a) where the child has been absent from the state during the six months before the commencement a parent (or one acting as a parent as defined by the statute) had to continue to live in New York. If plaintiff-mother had continued to reside in New York while the child was in New Mexico for the five (5) months and five (5) days then New York would have retained "home state" jurisdiction over the child because it is undisputed that New York was the "home state" of the child on October 21, 2016 when plaintiff-mother left New York and traveled with the child to New Mexico. Here, plaintiff-mother was not present in New York during that five (5) month and five (5) days. The only remaining basis for "home state" jurisdiction would be under DRL 76(1)(a) if this Court finds that the plaintiff-mother's time in New Mexico was a "period of temporary absence" as contemplated by the statute [DRL 75-a(7); see also, Arnold v. Harari, 4 AD3d 644, 772 N.Y.S.2d 727[3 Dept.,2004]). The policy behind the "temporary absence" provision permits parties to child custody proceedings to freely vacation and visit family members in other states without fear of losing home-state status; however, there is no definition of "temporary absence" in the UCCJEA portion of the DRL so the Court must look to case law precedent.
A review of the Appellate Division case law in New York on the issue of "temporary absence" as it relates to establishing the six (6) month requirement for "home state" jurisdiction reveals a focus on whether or not the parent seeking to establish "home state" jurisdiction in New York engaged in conduct evidencing an intent to change residency (see generally Felty v. Felty, 66 AD3d 64, 882 NYS2d 504 [2 Dept.,2009]; see also Arnold v. Harari, 4 AD3d 644, 772 N.Y.S.2d 727[3 Dept.,2004]; ).
In Felty v. Felty, the Appellate Division, Second Department, noted that despite taking the children to spend time with the respondent-father in Kentucky during the six (6) months prior to commencing her application for custody the movant-mother's "conduct could not be construed to evince an intent" to change residency (66 AD3d 64, 882 NYS2d 504 [2 Dept.,2009][Belen, J.]). In support, the Court noted that the movant-mother's "driver's license, voter registration, and veterinary license remained in New York" and during her physical time in Kentucky she continued to use her parents' address in New York as her permanent address. The Court further noted that "no affirmative steps" were taken to establish a permanent residence for the children in Kentucky noting that the children did not have a pediatrician in Kentucky.
Defendant-father, in the case before this Court, argues that plaintiff-mother engaged in the following conduct (which remains substantially unrefuted) in New Mexico allegedly demonstrating her intent to change her residency: obtaining a car loan, purchased an automobile [*7]and obtained car insurance in her New Mexico address [FN7] ; listed her Brooklyn property for sale; rented a U-Haul and moved the majority of her personal property and that of the child from Brooklyn to New Mexico in October 2016 [FN8] ; rented an apartment; opened a bank account; changed her address to a New Mexico address and set up mail forwarding from New York to New Mexico [FN9] ; began sessions with a therapist; and changed her nursing license registration to New Mexico and obtained full-time employment in the nursing field which included a "relocation bonus". Defendant-father also asserts that plaintiff-mother obtained health insurance for the family in New Mexico and that the parties' infant daughter was seen by pediatricians in New Mexico. At oral argument on May 25, 2017 defendant-father's counsel in New Mexico argued that the parties' fifteen (15) month old child spent her first Thanksgiving, her first Christmas and her first birthday in New Mexico. Defendant-father argues that he returned to New Mexico because his mother is battling breast cancer and that while the child was in New Mexico he and extended members of his family, including the paternal grand-mother, were able to have "regular and loving contact" with the child. Defendant-father also argues that plaintiff-mother's representation that she intends to live in New York is disingenuous because she applied to, was accepted to and planned to attend graduate school in Texas before she left New York in October 2016. He submitted copies of plaintiff-mother's student loan approval letters and copies of numerous electronic communications dated March 2017 in which the plaintiff-mother requested that he agree to allow her to take the child with her to attend graduate school in Texas. At oral argument on May 25, 2017 the plaintiff-mother's counsel represented that her client was "looking" at several graduate schools including a school in Texas and a school in Albany and that her client hoped that the parties would reach an agreement so that she could attend graduate school in Texas but that if this Court permitted her to litigate the divorce in New York she would stay in New York to litigate.
The Court also notes that it is not in dispute that before plaintiff-mother left New York in October 2016 to move to New Mexico she listed the marital residence, her premarital apartment, for sale and that it is currently in contract for sale. At oral argument on May 25, 2017 plaintiff-mother's counsel in New York argued that the sale of the marital residence in New York should not be considered because the plaintiff-mother had arranged to rent the apartment from the buyers so that the child could continue to live in the apartment while they are in New York.
Plaintiff-mother argues that she moved to New Mexico in an attempt to reconcile but that she is registered to vote in New York (and voted in New York during the presidential election in November 2016) and holds a New York State driver's license. She argues that the child "resided in New York the majority of her life but for 5 months" and that "all of [her] pediatricians and medical records are in New York, and her entire support system and family is [sic] on the East [*8]coast [sic]." She contends that "[a]ll of [the child's] babysitters and friends live in New York and her maternal grandmother lives on the east coast in Florida, and [the child] is very close to her." The plaintiff-mother also contends that the Court should consider the fact that she is currently breastfeeding the child.
During the live-streaming video joint oral argument between the New York and New Mexico Courts on May 25, 2017 the defendant-father's New Mexico counsel presented a copy of plaintiff-mother's application to obtain a nursing license in New Mexico which defendant-father's counsel obtained by subpoena. Defendant-father's counsel represented that that subpoenaed record established that as part of plaintiff-mother's application for a nursing license in New Mexico she averred and signed, subject to perjury, that New Mexico was her legal residence and that she intended to remain and to practice in New Mexico. Neither plaintiff-mother's counsel in New Mexico nor her counsel in New York disputed that plaintiff-mother had signed the nursing license including that New Mexico was her legal residence and that she intended to remain and to practice in New Mexico as represented by defendant-father's counsel but argued that in doing so she was "just checking the box" and "doing what she needed to do" in order to work in New Mexico. Plaintiff-mother's counsel in New Mexico argued that all plaintiff-mother did in signing the sworn statement on the application was to, in effect, "check a box" to get a job.
This Court finds that the facts presented here are distinguishable from the facts presented and the standard established in Felty (id, supra.) and that the plaintiff-mother's time in New Mexico was not merely a "temporary absence" tantamount to a vacation or a business trip as contemplated by the statute and delineated in the controlling Appellate Division, Second Department case law. It was plaintiff-mother's burden to show that pursuant to Felty the Court could find that the five (5) months and five (5) days that she stayed in New Mexico was a "temporary absence" and she has failed to do so. The facts, including the plaintiff-mother's own sworn statement on her nursing license application in New Mexico that New Mexico was her legal residence and that she intended to live and to work in New Mexico clearly evince her intent, at least prior to late March 2017 when she left New Mexico and unilaterally took the parties' child back to New York. The plaintiff-mother's subsequent decision in May 2017 to leave New Mexico does not retroactively change the nature of her relocation to New Mexico. Additionally, this Court is not persuaded by plaintiff-mother's counsel's argument that the Court should not give weight to the plaintiff-mother's sworn statement, which was made subject to perjury, that she was a legal resident of New Mexico and intended to live and to work in New Mexico. The plaintiff-mother is bound by her sworn statement.
Additionally, even without the plaintiff-mother's sworn statement that she was a legal resident of New Mexico and that she intended to live and work in New Mexico in order to obtain her nursing license in New Mexico the weight of the facts and affirmative acts of the mother in New Mexico presented clearly show that this was not a temporary absence based on the extensive connections the plaintiff-mother established with New Mexico. As such, this Court, after consultation pursuant to the UCCJEA with the New Mexico Court, finds that the five (5) months and five (5) days that plaintiff-mother lived and worked in New Mexico was not a "temporary absence" pursuant to DRL 75-a(7).
Having failed to established that the months she lived and worked in New Mexico was a "temporary absence" the record establishes that the child did not live in New York or New [*9]Mexico "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" as required for "home state" under DRL 75-a(7). Nor did a parent remain in New York during the six months prior to the commencement of this action sufficient to preserve New York as the "home state" of the child pursuant to DRL 76(1)(a). As such, this Court finds that neither New York nor New Mexico is the child's "home state" as defined by DRL 75-a(7) or DRL 76(1)(a).
The second possible basis for the New York Court to have jurisdiction is under the "substantial connection" test articulated in DRL 76(1)(b).
Domestic Relations Law 76(1)(b), as relevant here, provides the "significant connection" test:1. Except as otherwise provided in section seventy-six-c of this title, a court of this state has jurisdiction to make an initial child custody determination only if:
(a) 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 the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(b) a court of another state does not have jurisdiction under paragraph (a) of this subdivision, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section seventy-six-f or seventy-six-g of this title, and:
(i) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(ii) substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships [emphasis added by Court];
This Court has heard extensive oral argument on whether New York has jurisdiction under the "significant connection" provision as defined by DRL 76(1)(b)(i) and whether there is "substantial evidence" as defined by DRL 76(1)(b)(ii). In considering this question, the New York Court of Appeals held in Vanneck v. Vanneck that "substantial evidence" is synonymous with "optimum access to relevant evidence" (49 NY2d 602, 610, 427 N.Y.S.2d 735, 404 N.E.2d 1278 ). The New York Court of Appeals further found that DRL76(1)(b) "permits a flexible approach to various fact patterns" but that "[t]his imprecision...must not destroy the legislative design 'to limit jurisdiction rather than to proliferate it'" (id at 610).
Here, the child is fifteen (15) months old and it is undisputed that the child has been in the daily care of the parents throughout her life. Here, the weight of the facts clearly demonstrate that neither the child nor the plaintiff-mother have "significant connection" to New York. The fact that the plaintiff-mother may not want to live in New Mexico any longer and may want to live in New York again does not, in and of itself, establish a significant connection. Additionally, plaintiff-mother's counsel's argument that the "significant connection" test is satisfied because there may be property subject to equitable distribution located in New York is misplaced. The "significant connection" test is primarily concerned with the connections of the child, not with the parent. Additionally, the "significant connection" basis for jurisdiction is a two-prong test that requires the Court to consider whether "substantial evidence is available in [*10]this state concerning the child's care, protection, training, and personal relationships." Here, the only evidence that plaintiff-mother alleges is available in New York "concerning the child's care, protection, training, and personal relationships" is that during approximately the first ten (10) months of the child's life her routine pediatric appointments took place in New York.
Defendant-father's counsel in New Mexico argued that the child's more recent pediatric appointments took place in New Mexico. It is also undisputed that here the child was not enrolled in a daycare in New York and, given that the child was an infant when she lived in New York, it is evident that the child was not enrolled in any other activities or friendships that may strengthen a claim that the child has "significant connections" to New York.
The Court also notes that plaintiff-mother's insistence that the Court should consider the child's relationship with the maternal grandmother is not relevant to the consideration of whether the child has "significant connections" to New York because the maternal grandmother lives in Florida. This Court rejects the proposition put forth that since Florida is closer to New York than New Mexico that supports the plaintiff-mother's assertion that she and the child have significant connections to New York.
Additionally, the Court finds that the plaintiff-mother actively moved her life — personal and professional — to New Mexico in October 2016. She listed and eventually sold her apartment; she rented a U-haul and moved her personal effects and the majority of her furniture to New Mexico; she changed her nursing license from New York to New Mexico and obtained full-time employment in New Mexico as well as per diem employment in New Mexico; she obtained mental health services in New Mexico; she leased a car in New Mexico; and she changed her mailing address from New York to New Mexico. The Court is not persuaded by plaintiff-mother's reliance on the facts that she continues to possess a New York State driver's license and the fact that she voted in the 2016 presidential election in New York as a sufficient basis to establish that she has "significant connection" to New York.[FN10]
After consultation with the New Mexico Court, this Court believes that, based upon the unique facts and circumstances presented here, the most significant evidence concerning the child's care, protection, training, and personal relationships is not in New York.
The Court is mindful of plaintiff-mother's argument that she has been almost exclusively during the marriage the income earner for this family and that she may be able to earn a higher income in New York than in New Mexico based on the available job market; however, the Court notes that within weeks of moving to New Mexico the plaintiff-mother obtained full-time employment in the nursing profession and also obtained per diem employment. Certain, the issue of income is relevant to the issue of support; however, here, the facts indicate that the plaintiff-mother is able to obtain full-time employment in her chosen profession in New Mexico as she has done so in the months immediately proceeding commencement of this action in New York and has even declared in a sworn statement that she intended to continue to reside in New [*11]Mexico.[FN11] Additionally, the Court notes that despite plaintiff-mother's counsel's argument on the record during oral argument on May 25, 2017 that plaintiff-mother has many contacts in New York who are ready to give her employment the plaintiff-mother is not currently employed even though she has been in New York for approximately two (2) months.
Additionally, even if this Court found that the plaintiff-mother has "significant connection" to New York it would not be sufficient to establish "home state" pursuant to DRL 76(1)(b) because this Court has determined that, based on the unique facts presented including the fact that the child was an infant when she left New York, the child does not have "significant connection" to New York and that plaintiff-mother failed to meet her burden of showing that "significant evidence concerning the child's care, protection, training, and personal relationships" is available in New York.
SHOULD NEW YORK EXERCISE JURISDICTION
It is clear that even if the New York Court has jurisdiction the UCCJEA requires that the Court also consider whether to exercise that jurisdiction or whether to decline to exercise jurisdiction pursuant to DRL 76-e (simultaneous proceedings); DRL 76-f (inconvenient forum); and/or DRL 76-g (unjustifiable conduct on the part of the movant).
The Court also heard oral argument on the issues of whether New York should decline to exercise jurisdiction pursuant to DRL 76-e (simultaneous proceedings); DRL 76-f (inconvenient forum); and/or DRL 76-g (unjustifiable conduct on the part of the movant).
DRL 76-e (simultaneous proceedings) provides as follows:1. Except as otherwise provided in section seventy-six-c of this title, a court of this state may not exercise its jurisdiction under this title 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 under section seventy-six-f of this title.
2. Except as otherwise provided in section seventy-six-c of this title, a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to section seventy-six-h of this title. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this article, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this article does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.
3. In a proceeding to modify a child custody determination, a court of this state shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child custody determination has been commenced in another state, the court may:
(a) stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement:
(b) enjoin the parties from continuing with the proceeding for enforcement; or
(c) proceed with the modification under conditions it considers appropriate.
The parties both raise arguments related to service of the other's summons. Plaintiff-mother contends that defendant-father "went into hiding in Colorado, avoiding service or process for a month and causing me extraordinary counsel fees in multiple failed service attempts..." while alleging that the defendant-father's service of the New Mexico summons was defective. The Court notes that, contrary to the position taken by defendant's counsel during oral argument on the record on May 12, 2017, in New York State an action for divorce is commenced on the date of filing (see CPLR 304).[FN12]
Defendant-father's counsel's reliance on a trial court decision from 1993, which is not binding on this Court, and on the 1995 Appellate Division, First Department Graev v. Graev is misplaced. In Graev the Court stated, "merely because defendant commenced his action first by serving and filing a summons with notice (CPLR 304) does not mandate dismissal as a 'prior action pending' in the absence of service of a complaint." The Appellate Division, First Department did not find that the trial court abused its discretion in making its determination as "CPLR 304 does not mandate dismissal". Rather, the Appellate Division, First Department stated that "in the exercise of [their] discretion" they were making the determination.
This Court further notes that the Appellate Division, Second Department decision in Wharton v. Wharton is plainly distinguishable from the facts presented in the case before this Court (244 AD2d 404, 664 NYS2d 73 [2 Dept.,1997]). In Wharton, the husband moved in June 1996 to dismiss the wife's action for divorce pursuant to CPLR 3211 on the basis that he had commenced an action for divorce by filing a summons in 1990 but he never served the summons on the wife. Under those unique facts and circumstances the Appellate Division, Second Department determined that the husband's filing of the summons without service for almost seven (7) years did not constitute a "prior action" under CPLR 3211 and did not dismiss the wife's action for divorce. Clearly, the unique facts in Wharton are not present in the case at bar and the clear and unambiguous language of CPLR 304 and the well-established case law on the "first-to-file" is controlling in this case.
Contrary to defendant's counsel's argument, the well-established law in the Appellate Division, Second Department as articulated in Winston v. Freshwater Wetlands Appeals Bd., 224 AD2d 160, 646 NYS2d 565 [2 Dept.,1996]:A key provision in the change from the "service" system to the "filing" system was embodied in CPLR 304. The previous CPLR 304 (L. 1962, ch. 308) provided that "an action is commenced and jurisdiction acquired by service of a summons" (emphasis [*12]added) and by service of a notice of petition or order to show cause, for special proceedings. The present CPLR 304 (L. 1992, ch. 216, § 4, as amended by L. 1994, ch. 563, § 1) provides that an "action is commenced by filing a summons and complaint or summons with notice with the clerk of the court in the county in which the action is brought" (emphasis added)....
The New York Court of Appeals has also repeatedly and consistently ruled on the issue of commencement by filing (see Jones v. Bill, 10 NY3d 550, 860 NYS2d 769 ; see generally Perez v. Paramount Communications, Inc., 92 NY2d 749, 686 NYS2d 342 ; Spodek v. New York State Commissioner of Taxation and Finance, 85 NY2d 760, 628 NYS2d 256 ).
The Appellate Division, Fourth Department addressed this very issue in Evens v. Evens and found that "[c]ommencement of a custody proceeding, for the purposes of the UCCJA, means the date of filing, not the date of service of process upon the defendant" and that DRL 75-g accords priority to the action that is filed first, irrespective of the date of personal service (208 AD2d 223, 623 NYS2d 685 [4 Dept.,1995]). Here, plaintiff-mother commenced the New York divorce proceeding seeking an award of custody on March 28, 2017 before the defendant-father, apparently, commenced the New Mexico divorce proceeding seeking an award of custody on March 31, 2017. Here, the Court need not reach the issue of simultaneous proceedings because this Court has determined that plaintiff-mother failed to establish that New York is the "home state" either under the six (6) month provision or under the "significant connection" test.
BASIS TO DECLINE JURISDICTION: Inconvenient forum
DRL 76-e (inconvenient forum) provides as follows:1. A court of this state which has jurisdiction under this article to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the child or the child's attorney, or upon the court's own motion, or request of another court.
2. Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(a) whether domestic violence or mistreatment or abuse of a child or sibling has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(b) the length of time the child has resided outside this state;
(c) the distance between the court in this state and the court in the state that would assume jurisdiction;
(d) the relative financial circumstances of the parties;
(e) any agreement of the parties as to which state should assume jurisdiction;
(f) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(g) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(h) the familiarity of the court of each state with the facts and issues in the pending litigation.
3. If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.
4. A court of this state may decline to exercise its jurisdiction under this article if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.
The parties were provided an opportunity to present oral argument on the factors they believed applied to the issue of inconvenient forum pursuant to DRL 76-e on May 25, 2017. Here, the Court does not have to reach the question of whether New York would be an inconvenient forum under the facts presented because plaintiff-mother failed to establish that New York has jurisdiction over the issue of custody.
BASIS TO DECLINE JURISDICTION: Unjustifiable conduct
DRL 76-g (unjustifiable conduct) provides as follows:1. Except as otherwise provided in section seventy-six-c of this title or by other law of this state, if a court of this state has jurisdiction under this article because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:
(a) the parents and all persons acting as parents have acquiesced in the exercise of jurisdiction;
(b) a court of the state otherwise having jurisdiction under sections seventy-six through seventy-six-b of this title determines that this state is a more appropriate forum under section seventy-six-f of this title; or
(c) no court of any other state would have jurisdiction under the criteria specified in sections seventy-six through seventy-six-b of this title.
2. If a court of this state declines to exercise its jurisdiction pursuant to subdivision one of this section, it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the unjustifiable conduct, including staying the proceeding until a child custody proceeding is commenced in a court having jurisdiction under sections seventy-six through seventy-six-b of this title.
3. If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction pursuant to subdivision one of this section, it shall assess against the party seeking to invoke its jurisdiction necessary and reasonable expenses including costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be inappropriate. No fees, costs or expenses shall be assessed against a party who is fleeing an incident or pattern of domestic violence or mistreatment or abuse of a child or sibling, unless the court is convinced by a preponderance of evidence that such assessment would be clearly appropriate. The court may not assess fees, costs, or expenses against this state unless authorized by law other than this article.
4. In making a determination under this section, a court shall not consider as a factor weighing against the petitioner any taking of the child, or retention of the child after a visit or other temporary relinquishment of physical custody, from the person who has legal custody, if there is evidence that the taking or retention of the child was to protect the petitioner from domestic violence or the child or sibling from mistreatment or abuse.
This Court is mindful of the policy consideration in DRL76-g(4) which specifically carves out an exception for a party removing a child in a situation of domestic violence (see Felty v Felty, 66 AD3d 64, 882 NYS2d 504 [2 Dept.,2009]. In Felty, id. at 69, the Appellate Division, Second Department noted that:New York's adoption of the UCCJEA was intended to accomplish three principal goals. First, it was designed "to obtain and enforce orders of custody and visitation across state lines and to do so in a manner that ensures that the safety of the children is paramount and that victims of domestic violence and child abuse are protected" (Domestic Relations Law § 75 ; see Assembly Mem in Support of L 2001, ch 386, 2001 McKinney's Session Laws of NY, at 1558). Second, it was designed to eliminate any jurisdictional competition between courts and strengthen jurisdictional certainty in child custody proceedings (see Matter of Michael McC. v Manuela A., 48 AD3d 91, 95 ; Stocker v Sheehan, 13 AD3d 1, 4 ; EB v EFB, 7 Misc 3d 423, 432 , affd sub nom. Bjornson v Bjornson, 20 AD3d 497 ). Third, it was designed to resolve any inconsistencies and conflict between its predecessor, the Uniform Child Custody Jurisdiction Act (hereinafter the UCCJA) and with the Federal Parental Kidnaping Prevention Act (hereinafter the PKPA) (28 USC § 1738A; see Handschu, Outside Counsel, Uniform Child Custody Jurisdiction and Enforcement Act, NYLJ, Oct. 4, 1999, at 1, col 1; Ilvento, The Application of Kinney System, Inc. v. Continental Ins. Co. to Modification of Child Custody Proceedings, 83 Fla BJ 41 [May 2009]). In addition to resolving the conflicts between the UCCJA and the PKPA, the UCCJEA also conforms to the Violence Against Women Act (hereinafter the VAWA) (18 USC § 2265 et seq.) and the VAWA's goal of protecting victims of domestic violence who flee from one state to another state with their children to escape abuse (see Domestic Relations Law § 76-g ; Handschu, Uniform Child Custody Jurisdiction and Enforcement Act, NYLJ, Oct. 4, 1999, at 1, col 2).
The Appellate Division, Second Department also noted in Felty, id. at 72, that:Although one goal of the UCCJEA is to prevent forum shopping (see Matter of Michael McC. v Manuela A., 48 AD3d at 95; EB v EFB, 7 Misc 3d at 429), another crucial purpose of the UCCJEA is to protect victims of domestic violence who, on their face, may be perceived as forum shoppers, but in reality are fleeing from one state to another to escape abuse (see Assembly Mem in Support of L 2001, ch 386, 2001 McKinney's Session Laws of NY, at 1558; Hector G. v Josefina P., 2 Misc 3d at 820-821).
Here, the plaintiff-mother initially argued in her affidavit in support of her order to show cause dated May 5, 2017 that she left New Mexico when it "became clear to me that my Husband NEVER intended to reconcile and was rather FORUM SHOPPING [emphasis in original]." In that order to show cause the plaintiff-mother never indicated or alluded to any allegation that she fled New Mexico based upon domestic violence; however, at oral argument a week later on May [*13]12, 2017, plaintiff's counsel proffered an affidavit signed by plaintiff-mother, dated May 11, 2017, alleging that she left New Mexico based upon an act of sexual violence perpetrated by the defendant-father against her. In her affidavit dated May 11, 2017, she alleges that the defendant-father was sexually violent to her on two (2) occasions during the marriage. The plaintiff-mother does not indicate a date or time-frame for these alleged acts in her affidavit.
In his reply dated May 15, 2017 the defendant-father denies the facts proffered by the plaintiff-mother and argued that one (1) of these sexual acts she raised was accidental and immediately terminated when she objected. He avers that the incident took place in 2015 while the parties were attempting to conceive a child. He argues that the plaintiff-mother is disingenuous in asserting that act as the basis for her to leave New Mexico. Defendant-father denies any knowledge of the other alleged sexual act raised by the plaintiff-mother.
The plaintiff-mother also alleges that the defendant-father hit her once while she was breastfeeding the parties' child because the plaintiff-mother allegedly fell asleep. The defendant-father denies that he ever hit the plaintiff-mother and says that during the incident he moved a pillow after the plaintiff-mother fell asleep so that the child could sleep safely and that in doing so the plaintiff-mother woke up and then accused him of hitting her.
At oral argument on May 25, 2017 the defendant-father's counsel represented that it was his client's position that he was a victim of domestic violence during the marriage claiming that on two (2) occasions the plaintiff-mother hit him while he was driving an automobile while the parties' infant child was in the backseat. The plaintiff-mother's counsel did not dispute the allegation raised by defendant-father's counsel in New Mexico regarding the domestic violence incidents allegedly perpetrated by the plaintiff-mother against the defendant-father.
The Court notes that the defendant-father annexed numerous electronic messages purportedly exchanged between the parties from March 24, 2017 in which plaintiff-mother stated "Let's just get divorced" and defendant-father agreed. The messages include a vigorous debate back and forth between the parties as to whether to pursue the divorce in New Mexico or New York and include the plaintiff-mother alluding to the fact that she believed that New Mexico did not have jurisdiction over the child yet because she and the child had not be in New Mexico for six (6) months yet. It appears that plaintiff-mother was aware of at least some of the jurisdictional ramifications of remaining in New Mexico for six (6) months when she made the unilateral decision to leave and travel to New York.[FN13]
The parties purportedly continued the extensive text correspondence on March 25, 2017 that included plaintiff-mother saying "Fine. [The child] and I are leaving. Neither of us has residency here. I don't want to get stuck in this stupid tiny state" and that "6 months for residency. [The child] doesn't have residency status here. You do, but [the child] and I don't." It appears that the parties engaged in a lengthy electronic argument about custody of the child on March 25, 2017 and on March 26, 2017 that the plaintiff-mother wrote "It's better that we divorce, but I think a piece of me will always be sad we didn't work out" to which defendant-father subsequently responded "Could you just tell me where my daughter is physically at, I have [*14]a right to know, and to know she is okay" to which plaintiff-mother responded "We're in Houston on route to New York." In the electronic communication exchange the defendant-father repeatedly stated that he did not consent to the plaintiff-mother removing the child to New York.
It appears that the parties were deeply embroiled in ongoing discussions not about whether or not to pursue a divorce — it appears clear that they were in agreement that they wanted to divorce — but that they did not agree on whether they should pursue the divorce in New Mexico or New York. There does not appear to be any indication in the parties' extensive electronic communications, as proffered by the defendant-father, in the period of time prior to the plaintiff-mother leaving New Mexico which relates to her serious and disturbing allegations of sexual violence as the basis for her leaving New Mexico.
Plaintiff-mother alleged serious allegations of sexual violence which the defendant-father denies and claims were consensual acts which occurred prior to the child being born. The Court is unclear as to when the plaintiff-mother is alleging the acts occurred or where they occurred. The plaintiff's moving papers in New York are devoid of said allegations and appear to be raised in responsive submissions in New York only after this Court initially heard oral argument on these issues. While the Court is cognizant of the impact of domestic violence on victims and that some victims are hesitant to raise allegations out of safety and emotional concerns the facts and circumstances presented here and the extensive documentary proof and the cross-allegations give the Court reason to pause. This Court, having considered all of the provisions of the UCCJEA and after consultation with the New Mexico Court and the particular facts and circumstances presented here finds that the parties' cross-allegations of domestic violence can be addressed in the New Mexico Court. This Court does not believe, based on the particular facts and circumstances presented here, that domestic violence was the basis for plaintiff-mother's decision to leave New Mexico. By plaintiff-mother's own statement in the electronic communications between her and the defendant-father she admitted that she was leaving New Mexico so she would not get "stuck" in the "tiny" state of New Mexico. It is not clear that plaintiff-mother even intends to remain in New York and make New York her residence. Given plaintiff-mother's application to a graduate program in Texas and her willingness, as represented by her counsel in New York on the record on May 25, 2017, to relocate to Texas she clearly does not meet the test that she is seeking to live in New York as a basis to protect her from domestic violence as contemplated by the statute.
The Court is mindful that the defendant-father has not had parenting time with this child since the plaintiff-mother left New Mexico with the child at the end of March 2017. The plaintiff-mother has made representations that she does not object to the defendant-father having parenting time with the child. To ensure that the child's right to parenting time with her father is protected the New York Court and the New Mexico Court jointly directed that the parties submit, if possible, a consent stipulation regarding a temporary parenting access plan for defendant-father to have parenting time with this child forthwith. Inasmuch as this Court has found that it does not, at the present time, have jurisdiction over the parties' minor child and the custody issues presented show that the child's contacts with New Mexico meet the significant connections test giving New Mexico a jurisdictional basis on the issue of custody. This Court defers to the determination of the New Mexico Court which has, after consultation with this Court, asserted that jurisdiction belongs in New Mexico, to adjudicate the custody issues between the parties.
This Court denies plaintiff-mother's application for an extension of time to serve the summons in the action she commenced in August 2016. Defendant-father annexed documentation in which the plaintiff-mother told him by electronic message dated August 30, 2016, annexed to his "Reply Affirmation" filed May 12, 2017, to "just ignore the deadline — you weren't served with papers, so it's not official official [sic]. I'll see what we can do to pause things legally."
In the recent Appellate Division decision, the Second Department dealt with the issue of granting an extension of time to serve pursuant to CPLR 306-b in the case of A.K. v. T.K., 2017 NY Slip Op 04106 [2 Dept.,2017], as follows:The Supreme Court also providently exercised its discretion in declining to compel the defendant to accept untimely service of the plaintiff's summons and notice in the first action. "Pursuant to CPLR 306-b, a court may, in the exercise of its sound discretion, grant a motion for an extension of time within which to effect service for good cause shown or in the interest of justice" (Emigrant Bank v Estate of Robinson, 144 AD3d 1084, 1085; see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 103-106; Bumpus v New York City Tr. Auth, 66 AD3d 26, 31-32). "Good cause will not exist where a plaintiff fails to make any effort at service" (Bumpus v New York City Tr. Auth, 66 AD3d at 32, citing Valentin v Zaltsman, 39 AD3d 852). "In determining whether an extension of time is warranted in the interest of justice, a court may consider, inter alia, diligence, or lack thereof, . . . expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant'" (Matter of Baumann & Sons Buses, Inc. v Ossining Union Free Sch. Dist., 121 AD3d 1110, 1113, quoting Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; see Thompson v City of New York, 89 AD3d 1011, 1012). Here, the plaintiff made no effort at timely service, and the defendant's litigation tactics and alleged misrepresentations did not warrant an extension of time in the interest of justice (see Brown v Sanders, 142 AD3d 940, 940-941).
Notwithstanding the plaintiff-mother's position that the defendant-father acknowledged that he received a FedEx delivery of a summons in the August 2016 action, defendant-father contends that this FedEx service is insufficient because it was not personal service, this Court finds that the facts and circumstances here do not warrant an extension of time to serve particularly noting that the plaintiff-mother affirmatively represented to the defendant-father that he should "ignore" the deadline and that she would "pause things legally" (see A.K. v. T.K, 2017 NY Slip Op 04106 [2 Dept.,2017]).
This Court hereby vacates the ex parte temporary restraining order by this Court into the order to show cause dated May 5, 2017 which provided that the "child [NAME REDACTED HERE] dob [REDACTED HERE] shall not be removed by the Defendant from her present residence [ADDRESS REDACTED HERE]" pending determination of the application.
Counsel are directed to appear for oral argument on Tuesday, July 11, 2017 at 9:30 a.m. on the issue of this Court's jurisdiction over the divorce action filed by plaintiff-mother in March 2017, as well as the impact, if any, of her sworn statement that New Mexico was her legal residence on her nursing license application in New Mexico (DRL 230) and on the issues of [*15]counsel fees.
This shall constitute the decision and order of the Court.
Dated: June 2, 2017
JEFFREY S. SUNSHINE
The above DECISION was Written by Judge Sunshine, Supreme Court Judge County of Kings State of New York