Opinion
V-16685-6/17
09-29-2017
In the Matter of a Proceeding for Custody under the Uniform Child Custody Jurisdiction and Enforcement Act. Albert A., Petitioner, v. Erika Y.C., Respondent.
For the Father, Daniel P. Moscowitz, Esq.; For the Mother, Joseph Rotkowitz, Esq.; For the Subject Children, M.A.A. and L.I.A., Vladimir Cadet, Esq.
For the Father, Daniel P. Moscowitz, Esq.; For the Mother, Joseph Rotkowitz, Esq.; For the Subject Children, M.A.A. and L.I.A., Vladimir Cadet, Esq.
PROCEDURAL HISTORY
The Father, Albert A. (hereinafter "Father") and the Mother, Erika Y.C. (hereinafter "Mother") have two children in common, M.A.A. and L.I.A. (hereinafter "children"). On August 17, 2017, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter "UCCJEA"), the Father filed a petition for a modification of the parties' custody order, which awarded custody to the Mother. In his petition, the Father argued that it was necessary for the New York family courts to exercise emergency jurisdiction in order to protect his children from their mother and her husband, and that a change of custody should be made to him. The Father alleged that the Mother permits her husband, A.S., to physically abuse the children, while she stands idly by.On August 18, 2017, the Court exercised emergency jurisdiction over the parties. The Court issued an order of protection against the Mother on behalf of the children, and ordered the New York City Administration for Children's Services (hereinafter "ACS") to conduct an investigation into the matter. A thorough report was provided to the Court wherein a case worker conducted interviews with the children, their mother, and their father.
The UCCJEA is codified as New York State Domestic Relations Law § 75 et seq.
The Father then asked this Court to exercise continuing emergency jurisdiction over the matter because he claimed that the emergency existed so long as the Mother's husband was living in the children's home in Florida. The Court heard testimony from the Mother, the Mother's husband, and the Father. The Court received into evidence, several documents offered by the parties. For the reasons set forth herein, the Court declines to exercise continuing emergency jurisdiction, and dismisses the Father's modification petition.
JURISDICTION TO MODIFY FLORIDA'S ORDER
A New York court may not modify an existing child custody determination from another state unless: (1) the other state determines it no longer has exclusive, continuing jurisdiction; or, declines jurisdiction, deciding that New York is a more convenient forum; or, (2) New York or the other state determine that the child, the child's parents or an individual acting as the child's parent do not reside in the other state See NY Dom. Rel. L. § 76-b (McKinney's 2017); see also Calvo v. Herring, 51 AD3d 916, 917 (2d Dep't 2008) (upholding Brooklyn Family Court determination that Washington had jurisdiction since it issued custody order, father still lived in Washington, and Washington court did not decline jurisdiction).
Florida is the children's "home state." See NY Dom. Rel. L. § 76 (McKinney's 2017). The Court took testimony from the parties regarding the children's connections to New York and Florida. See NY Dom. Rel. L. §75-i (McKinney's 2017). It is undisputed that the children have lived in Florida with their mother on a continuous basis since 2013. See Hollander v. Weissberg, 147 AD3d 831, 833 (2d Dep't 2017) (affirming Westchester Family's Court determination that Israel was home state; child lived there for more than six months before commencement of proceedings); see also Gharachorloo v. Akhavan, 67 AD3d 1013, (2d Dep't 2009) (finding Westchester Family Court properly determined New York had no jurisdiction; children born in New York, but lived in Iran for several years prior to initiation of proceedings). Moreover, there is a divorce judgment and custody order issued by the Florida courts awarding custody to the Mother with 100% parenting time. To that end, the Mother initiated a parallel proceeding in the Eleventh Judicial Circuit of Florida's Family Court. This Court made multiple attempts to communicate with Eleventh Judicial Circuit of Florida's Family Court Judge George A. Sarduy, to no avail. See NY Dom. Rel. L. §75-i (McKinney's 2017) (record must be made of the communication between the home state court and New York). Based upon evidence provided by the parties, the Court is aware that the Florida court declined to take action, deferring to New York's investigation that has since been completed. The Florida court did not, however, determine that it no longer had exclusive, continuing jurisdiction over the parties, or that New York was a more convenient forum. See NY Dom. Rel. L. § 76-b (McKinney's 2017). Thus, this Court finds that New York does not have jurisdiction to modify the parties' Florida custody order. CONTINUING EMERGENCY JURISDICTION
There was testimony that the children lived for short intervals with their father in New York prior to 2013, but the time periods were disputed by the children's mother.
See Final Judgment of Dissolution of Marriage (with children) (Sarduy, J., 12/04/14), Miami-Dade County Faily Division Case No. 2014-013490-FC-04).
Although the Court left messages with Judge Sarduy's chambers the prior week, some of the failed attempts to communicate during the week of the hearing revolved around Hurricane Irma's impending arrival in Florida. The Eleventh Judicial Circuit of Florida was closed on September 7, 2017 and September 8, 2017 for evacuation purposes. This Court, as well as this Court's Attorney, placed the efforts to communicate with the Florida courts, on the record, with all parties present. See For The Record Audio Recording (Hunt, J., 09/08/17), Queens County Family Court Docket Number V-16685-6/17. It should be noted that as of the date of this decision, this Court has not heard back from the Florida courts.
See Conde v. Aronov (Sarduy, J., 08/31/17), Miami-Dade County Family Division Case No. 2014-13490FC16.
Pursuant to New York State Domestic Relations Law §76-c, a New York court has temporary emergency jurisdiction over a child if such child is present in the state and has been abandoned, or it is necessary to protect the child, their sibling or parent. See NY Dom. Rel. L. § 76-c (McKinney's 2017); see also Hearne v. Hearne, 61 AD3d 758, 759 (2d Dep't 2009). A court must also decide whether to invoke continuing emergency jurisdiction. See Santiago v. Riley, 79 AD3d 1045, 1046 (2d Dep't 2010) (family court must decide whether circumstances as well as allegations in petition require continuing emergency jurisdiction for protection of the child)
An order issued under this temporary emergency jurisdiction remains in effect until the child's "home state" issues orders to protect the child.See NY Dom. Rel. L. § 76-c (McKinney's 2017).
On the issue of the children's safety, this Court heard testimony from both parents as well as the Mother's current husband, and assessed the witnesses' credibility. The Court reviewed a copy of the court-ordered investigation report, dated, August 30, 2017, which ACS conducted. The Court viewed a video of the children taken by the Father, which the Father posted on You Tube. The Court can only conclude that the video was staged. The children appeared to be responding to cues from someone off camera, and following a script. Moreover, their affect was completely incongruous with the description of corporal punishment they claim they were subjected to. The You Tube video seemed to have been posted primarily, in the words of the children, for the purpose of raising money to hire "the best Jewish lawyer" to represent their father in the UCCJEA proceedings. The Court has seen the Father's arrest record and mugshot, which both relate to felony charges brought in Florida on complaint of the Mother. The Mother testified that the Father "tried to kill her." The Father admitted pleading guilty to a misdemeanor, receiving probation, and receiving anger management counseling.
At the end of the video, both children stand simultaneously, point at the viewer, and yell, "End child abuse now!"
Reviewing the children's claim of physical abuse, the Court concludes there is insufficient credible evidence upon which this Court could take any action, even if authorized. The charges to some extent seem fantastical, particularly in light of the fact that there is so supporting medical, photographic or physical evidence to substantiate the claims. Moreover, the Mother produced a letter from the children's pediatrician attesting to their good health shortly before the children went to New York to visit their father. The letter also states that the children have been the author's patients since 2015 and there was never any indication of abuse within his records.
It is truly unfortunate that the Father was able to use the court system to disrupt the Mother's seemingly happy home life in Florida. The children's child abuse claims, proffered on the eve of their impending return home to their mother in Florida, appear to be orchestrated by the Father, consistent with his controlling domestic violence background. Notably, despite a 100% parenting time order to the Mother, she voluntarily sent the children to their father for the summer so that they could associate with him and their paternal grandparents. Apparently, the Father spent the visitation he was gifted by the Mother, poisoning the children against her rather than devoting his time to appreciating their visit. The evidence showed that since the parties' divorce judgment and custody order, the Father never filed a petition challenging custody or visitation, and never gave this Court an acceptable, plausible reason explaining why. Instead, the Father waited at least four years, until the Mother was remarried and she and the children were content with their new family composition, before he came to court with his outrageous claims.
The Court notes anecdotally that the Mother was forced to hire an attorney, and fly to and stay in New York with her husband for several days at her expense, to defend a meritless petition. This merely continues the parties' past domestic violence scenario.
The Father's claim that he did not know about the Florida custody order is specious. --------
The Court is satisfied that the matter was thoroughly investigated by ACS and that the other evidence presented at the hearing is sufficient for a decision in the matter. Based upon the lack of credible evidence of child mistreatment, this Court declines to exercise any form of continuing emergency jurisdiction. See generally NY Dom. Rel. L. § 76-c (McKinney's 2017); see e.g.. Hearne, 61 AD3d at 759 (mother's unsubstantiated allegations did not warrant invocation of family court's emergency jurisdiction).
This constitutes the decision, opinion, and order of the Court. Dated: September 29, 2017 Jamaica, New York ENTER: /JM _____________________________________ JOHN M. HUNT, JUDGE FAMILY COURT - QUEENS COUNTY