The general rule of law is that a divorce judgment or Order that was obtained in a
foreign jurisdiction, in accordance with the laws of that foreign country or foreign state
is entitled to recognition under the principle of comity unless the decree offends the laws
of public policy which are adhered to in the State of New York. This principle of law
comes into play when the power of a court to act on your case is questioned by one or
the other party to a divorce or child custody proceeding. This issue is often referred to
as a jurisdictional issue. I will provide you with some court case examples of this issue
in this article so that you can see how New York Divorce courts can be expected to
approach a jurisdictional issue. These examples will also aid litigants who think they
might be able to file an appeal in New York based upon the issue of lack of jurisdiction.
With the degree of mobility we experience as parents in our contemporary world the
issue as to where to enforce or modify foreign Judgments of Divorce or Child
custody Orders comes up quite often and the issue is very complex since each case is
weighed on its own particular facts.
In the case of SB v WA, 959 N.Y.S.2d 802, 2012 N.Y. Slip Op. 22340, the Westchester
County Court held the following on the following facts of the case. There, the Wife
asked the Court by way of motion by way of order to show cause to recognize and
register with New York divorce judgment and order of custody which was entered into by
the parties in Abu Dhabi, a country located in the United Arab Emirates (UAE). The
Husband responded and asked the New York Court to issue a summary Order awarding
him physical custody of the parties’ children, attacked the validity of the divorce
Judgment issued in Abu Dhabi and for an order directing that the wife to her divorce
action in New York. In other words, the Husband wanted the divorce and custody case
to be reheard in New York and the Court declined his motion.
Thus, the Husband was not allowed to challenge the foreign judgment collaterally
attacking by challenging the validity of the foreign divorce decree because at the time of
divorce proceedings there, both parties were living with the children in Abu Dhabi, and
the divorce judgment was obtained after a full blown divorce trial and two appeals had
been had which went to the highest court of that country as both of the litigants were
represented by attorneys and were allowed to explore and argues fully all issues
concerning the matter. Moreover, the New York Court held that the foreign court had
jurisdiction to issue a final Judgment that was not to be disturbed for the following
additional reasons. The New York Court first considered whether the public policy of the
State of New York may have been violated in some way by the prior proceedings would
be violated by recognition of foreign divorce decree, the court generally considers the
validity of the foreign court’s jurisdiction over the parties and in so doing it compares the
similarity of the grounds for a and if those grounds entertained there would be deemed
in violation of the public policy concerns of New York. While there might be situations
where a divorce in granted in a foreign state would be deemed repugnant to the public
policy senses of a New York Court, here the New York Court felt that this was not the
case on these facts. Here the noncustodial parent was looking for the New York Court to
change a child custody Order and the Court, after applying New York Law to the case at bar, concluded that a party id not automatically entitled to a trial without first showing
evidence that would be deemed necessary to merit a new trial in the issue of custody.
The New York Cour, after considering the arguments of the parties, discussed the laws
in the foreign State as they compared to those in New York and held as follows, in
pertinent part:
“The UAE is a civil law country where regulations and procedures are codified in the
UAE federal laws. Local and federal courts follow these procedures while hearing civil
and criminal matters” …The UAE has a federal judicial system, however, the
constitution also gives each emirate the authority and power to retain its own judiciaries
outside the federal system. Abu Dhabi is one of three emirates that maintains its own
judiciary, or local courts. (Judicial System in Abu Dhabi, Abu Dhabi eGovernment
Gateway—Citizen—Home.
The Court next discussed the principle of recognition of a judgment from another State
or country, concluding the following: …. “The general principle of law is that a divorce
decree obtained in a foreign jurisdiction by residents of this State, in accordance with
the laws thereof, is entitled to recognition under the principle of comity unless the
decree offends the public policy of the State of New York” (Kraham v. Kraham, 73
Misc.2d 977, 342 N.Y.S.2d 943 [Sup. Ct. Nassau Co.1973] ). “Although not required to
do so, the courts of this State generally will accord recognition to the judgments
rendered in a foreign country under the doctrine of comity which is the equivalent of full
faith and credit given by the courts to judgments of our sister States” (Greschler v.
Greschler, 51 N.Y.2d 368, 376, 434 N.Y.S.2d 194, 414 N.E.2d 694 [1980] ). “Loosely,
[comity] means courtesy, respect, or mutual accommodation; practically, it means that
each sovereign, including the State of New York, can decide for itself which foreign
country judgments it will recognize and which it won’t” (Siegel, N.Y. Prac. § 472 [5th ed.]
So, what can we learn from a case like this? The Court in essence will likely enforce the
Order of a foreign state so long as the laws applied are not repugnant to the ideas of
fairness in the State of New York. This does not mean that there are no other
circumstances where the result would be different .For instance, see the case of
Geraldine H.T.B. v. Guillaume A.P.M.J., 220 A.D.3d 457 (2023) where the Appellate
Division, on an appeal from a lower court decision, on facts where a divorce Judgment
was had in Morocco, held that…”Contrary to the father’s contentions, the mother’s
relocation from Morocco to escape domestic violence was not wrongful removal of the
child (see Domestic Relations Law § 76–g[4], Jacquety v. Baptista, 538 F.Supp.3d 325
[S.D.N.Y.2021]), and her petition for custody was, therefore, properly commenced in
New York. This is not contradicted by the mother having filed a divorce petition in
Morocco, as that petition did not seek custody of the child. Nor did the father filing a
petition for reconciliation in Morocco constitute a custody proceeding under the
UCCJEA, as that filing was not made in substantial conformity with the jurisdictional
requirements of the UCCJEA (see Domestic Relations Law § 76[1]; *458 Matter of
Michael McC. v. Manuela A., 48 A.D.3d 91, 97, 848 N.Y.S.2d 147 [1st Dept. 2007], lv
dismissed 10 N.Y.3d 836, 859 N.Y.S.2d 607, 889 N.E.2d 485 [2008])…..”
From the above decisions, it then becomes clear that each interjurisdictional dispute will
be heard and determined in on the particular individual facts of each case and that there
is never a cookie cutter solution to interjurisdictional disputes,
I hope you found this information helpful!
By: Your Manhattan Divorce Lawyer
Lisa Beth Older, Esq.