Opinion
216369
06-06-2018
In the Matter of a Child Custody Proceeding Under Article 6 of the Family Court Act M.M., Petitioner, v. M.A., S.A., Respondents.
Attorneys: David Shapiro, Esq Angela Yeboah, Esq.
Attorneys: David Shapiro, Esq
Angela Yeboah, Esq.
Aija M. Tingling, J.
This matter involves a petition for a Writ of Habeas Corpus and registration of a foreign order of custody pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), filed by the Petitioner M.M. against the Respondents, M.A., the father of the subject child and S.A., the step-mother of the subject child.
Respondent father, M.A., by counsel, David Shapiro, Esq. filed an objection to Petitioner's request for registration of an out of state custody order. The objection is based on Respondent father's 2016 order of custody purported to supersede the 2009 order Petitioner seeks to register. An affirmation in opposition was filed by counsel, Angela Yeboah, Esq. on behalf of the Petitioner. Thereafter, Respondent filed a motion to dismiss the petition for writ of habeas corpus.
Respondent S.A. has not been served.
All issues were fully briefed in the papers submitted. The threshold issue however, is whether New York State has jurisdiction to entertain Petitioner's application for a writ in the first instance.
Background
The following facts are not in dispute:
Petitioner and Respondent father are from Oklahoma. They were married in 1989 in an Islamic ceremony in Tulsa, Oklahoma. In 2002, the parties relocated from the United States to the United Arab Emirates (UAE) with four of their five children, where they resided as ex-patriates. The fifth child, Z.A. who is the subject of these proceedings, was born in the UAE in December 2004. The subject child has never been to the United States or New York State.
In 2008, while still living abroad in the UAE, the parties were divorced. They entered into a custody agreement issued by the Abu Dhabi Court of First Instance, wherein Petitioner was granted sole custody of the children, including the subject child.
In April 2009, a UAE court modified the custody order, granting Petitioner permission to move to India with three of the five children, including Z.A. Thereafter, Petitioner remained in India from 2009 until April 2017, when she returned to the United States and relocated to New York.
In May 2010, the children were returned to Respondent father in UAE. The circumstances of their return to UAE are in dispute. The subject child resided with Respondent father in UAE from 2010 until approximately March 2017. In March 2017, both Respondents relocated to Morocco with the subject child, where she is currently residing with Respondent step-mother. On January 5, 2018, Respondent appeared by phone and informed the court that he was presently residing in Oklahoma.
It is unknown when the Respondents were married.
Petitioner has not lived with or seen the subject child since 2010. These proceedings were commenced on December 13, 2017.
Summary of Arguments
Respondent father objects to the registration of the custody order dated April 20, 2009 and requests that the petition for Writ of Habeas Corpus be dismissed. Respondent father contends that the 2009 order was modified on July 19, 2016 by the Court of First Instance, United Arab Emirates, granting sole custody of the subject child to him. Respondent father further asserts that the 2016 order specifically states that Petitioner was "notified duly" of the proceedings and failed to appear. Respondent father argues that the July 19, 2016 custody order is a valid order of custody which supersedes the 2009 custody order and is entitled to full faith and fair credit by this court.
Respondent father further contends that this court lacks subject matter jurisdiction as New York is not the home state of the subject child. Respondent father argues that the subject child has never resided in the United States, has never resided in New York State and New York has not issued any custody orders regarding the subject child. The subject child resides in Morocco and has resided in Morocco for more than six months prior to the filing of Petitioner's request for Writ of Habeas Corpus. Therefore, Morocco is the subject child's home state under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
Additionally, Respondent father further argues that if this court finds that the subject child has no home state, there is no significant connection to New York for this court to obtain jurisdiction. Mere presence of Petitioner in this state is insufficient for this court to retain jurisdiction.
See Becker v. Toshiko Watanabe , 109 AD2d 861, 861 (2nd Dept. 1985).
In opposition, Petitioner argues that the 2016 order is invalid because she was never notified of the proceedings and never received a copy of the modified order. As such, Petitioner alleges Respondent father obtained the order by fraud. Petitioner also asserts that the order should not be given full faith and credit because it is not a certified and attested copy.
Petitioner also alleges that the subject child is not residing with a parent or person acting as a parent in Morocco because the 2016 custody order is invalid, thus Morocco cannot be the home state of the subject child. Petitioner cites Matter of John M. v. Teresa M. , arguing that the court held that a person acting as a parent must be someone who was awarded custody.
Matter of John M. v. Teresa M. , 30 Misc 3d 1220(A), 2011 NY Slip Op. 50141(U) [Fam. Ct. 2011).
Furthermore, Petitioner argues that this court does have subject matter jurisdiction because the subject child lacks a home state. Petitioner argues that pursuant to Domestic Relations Law § 76 [1 ][d], where the child has no home state and no other court has jurisdiction, this court has jurisdiction to enter custody orders and issue appropriate writs to enforce those orders. Since Petitioner, a parent, has resided in New York State since April 2017, this court may retain jurisdiction through her residency in the state.
See Nusrat C. v. Muhammad R., 886 N.Y.S.2d 881 (1st Dept. 2009) ; People ex rel. Gupta v. Gupta , 880 N.Y.S.2d 532 (2nd Dept. 2009).
Issue/Analysis:
Whether this court has jurisdiction or can exercise emergency jurisdiction over this matter. There are several ways in which New York can obtain jurisdiction to hear a custody matter; home state jurisdiction, significant connections and substantial evidence, appropriate forum, best interest and temporary emergency jurisdiction, addressed below.
Domestic Relations Law § 76 [1 ] [a] [b] [i] [ii] [c] [d].
Domestic Relations Law § 76 [1 ] allows New York to exercise jurisdiction over a custody matter if New York is the home state of the child. Home State is defined as "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." Under the UCCJEA, foreign countries are deemed to be American states for purposes of determining home state and jurisdiction. Whenever a foreign country is involved, a full Domestic Relations Law § 76 analysis is required to determine if jurisdiction exists, the same analysis as when a sister state may qualify jurisdictionally.
Under the home state jurisdiction analysis, New York is not the home state of the subject child for this court to render jurisdiction over the matter. The subject child has resided in Morocco for six months prior to the commencement of these proceedings and prior to that the subject child resided in UAE for seven years.
Domestic Relations Law § 75-d ; Domestic Relations Law § 76 [a]; see also Randall v. Randall , 305 AD2d 512, 759 N.Y.S.2d 537 (2nd Dept. 2003) [Citing Domestic Relations Law § 75-d, the Appellate Division affirmed a finding that Costa Rica was the home state, precluding New York jurisdiction and holding that New York was a forum non conveniens for the child custody proceeding where the child resided outside of New York practically from birth until the petitions were filed, parties' home was in Costa Rica, and all the relevant evidence needed, including the child's doctors and witnesses to the alleged abuse, was located in Costa Rica.]
Based on the facts of this case, UAE or Morocco may be treated as states for purposes of jurisdiction. The subject child has significant connections to UAE as she was born there, has resided there most of her life and UAE has issued prior orders of custody relating to her as the subject child. The child also has significant connections to Morocco because that is where she has been residing for the past fifteen months with her step-mother, a person acting as a parent.
DRL § 13 [a] [b] specifically defines a person acting as a parent as a person, other than a parent, who either has physical custody of the child or has had physical custody for a period of six consecutive months and has been awarded legal custody by a court or claims a right to legal custody under the law of this state.
Domestic Relations Law § 13 [a] [b]
Respondent father has had physical custody of the subject child in the UAE since 2010. In 2016, he obtained an order of sole custody, the validity of which is in dispute, based on an order issued in the UAE modifying a prior order of sole custody to Petitioner. In March 2017, Respondent father moved the subject child and Respondent step-mother S.A. to Morocco. In May 2017, he left the subject child in the care of Respondent step-mother in Morocco, while he returned to Oklahoma, United States where he continues to reside.
This court believes Petitioner's reliance on Matter of John M. is misplaced. In that case, the parties entered into an agreement to have joint legal custody. When the children were subsequently placed with the grandparents in another state, the grandparents did not assert a right to claim legal custody. Unlike in the instant matter, the parties did not enter into an agreement for joint legal custody. Respondent father has an order of sole custody, and by leaving the subject child in the care of Respondent step-mother in Morocco while he is state side, has conferred upon her by virtue of being his wife and caregiver of the subject child, a right to claim legal custody given that the subject child has resided with them since 2010.
Matter of John M. v. Teresa M. , 30 Misc 3d 1220(A), 2011 NY Slip Op. 50141(U) [Fam. Ct. 2011)
Additionally, a state can also obtain jurisdiction if "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 substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships." However, it has also been held that significant connections and substantial evidence alone may not be utilized as a substitute for home-state. This alternative is used in limited situations.
Domestic Relations Law § 76 [b] [i] [ii].
See Michael P. v. Diana G. , 156 AD2d 59, 64, 553 N.Y.S.2d 689, 692 (1st Dept. 1990).
It is undisputed that the subject child was born abroad and has never visited nor resided in New York or the United States. From 2009 until March 2017, Petitioner has resided in India and thereafter, Petitioner moved to New York in April 2017. Petitioner has not seen or resided with the subject child and has had little to no contact with the subject child since 2010. As such, Petitioner has failed establish that the subject child has significant connections with this state other than Petitioner's mere presence here. Moreover, Petitioner has failed to demonstrate that there exists substantial evidence available in this state for New York to render jurisdiction over this matter, as the subject child has resided with Respondent father since 2010 first in the UAE and subsequently and currently in Morocco.
Domestic Relations Law § 76 [b] [i] [ii]; Domestic Relations Law § 76 [c]. See also Michael P. v. Diana G. , 156 AD2d 59, 64, 553 N.Y.S.2d 689, 692 (1st Dept. 1990) [The Appellate Division held that the absence of children from a state for 18 months is a strong indicator that there is no longer optimum access to relevant evidence. Further, the court found that defendant's assertion of substantial evidence existing in New York based on his suitability as a father and concerning the children's condition and preferences was vague and unconvincing.]
Alternatively, New York may obtain jurisdiction if each state which has jurisdiction declines to exercise jurisdiction because this state is the more appropriate forum. Neither UAE nor Morocco has declined to exercise jurisdiction in this matter. No evidence has been presented establishing that New York is a more appropriate forum, as opposed to UAE or Morocco, especially in light of the fact that the parent who has had physical custody of the child currently resides in Oklahoma.
New York may also accept jurisdiction where no home state or significant connections exist, under the best interest standard of Domestic Relations Law § 76 [d]. However, this standard is applied in limited situations, such as parental deployment abroad and migrant workers. In this case, this court finds that Domestic Relations Law § 76 [d] does not apply as the parties are from Oklahoma, relocated to UAE with the intent to remain, the subject child was born abroad in UAE and has no connections whatsoever to New York; and, Petitioner's only connection to New York is her presence in this state since April 2017. Moreover, the Respondent father, who has had physical custody of the child, for the past eight years is residing in Oklahoma. As he has had the child in his care and custody since 2010, Oklahoma appears to be the jurisdiction that would have substantial contacts and significant connection through Respondent Father, who can present evidence as to the well-being of the subject child. No evidence has been submitted that Oklahoma is not a more appropriate forum.
See Rivera v. Santiago , 174 Misc 2d 255, 663 N.Y.S.2d 801 (Fam. Ct. Orange Co. 1997) [Petitioner father resided in New York; the respondent mother and child resided temporarily in Panama for work, remaining under the jurisdiction of American law. In the absence of a home state and the further absence of substantial contacts, New York Family Court accepted jurisdiction, applying a best interests standard.]
Lastly, Petitioner argues that New York should exercise temporary emergency jurisdiction because the child is residing with an abusive non-parent. However, the subject child is not present in this state and therefore emergency jurisdiction does not apply.
The matter of Serihy M. v. Olena O.M is instructive and analogous to this matter, in which Kings County Family Court found that it lacked subject matter jurisdiction to adjudicate the child custody dispute. The parties were married in the Ukraine and their daughter was born in Ukraine in 1997. In 1998, the father relocated to New York to seek employment opportunities and the mother and daughter remained in the Ukraine. From 1998 to 2008, the parties lived apart except for brief periods of time, in March 2007 and January 2008, when the parties attempted to reunify and reconcile. The parties divorced in the Ukraine on March 26, 2008 and in that same year, the mother relocated to New Jersey for work and left the then 11—year—old child in the Ukraine under the care of the maternal grandfather and aunt. From 2008 until the proceedings commenced, the child visited the United States for limited periods of time but resided in the Ukraine.
Serihy M. v. Olena O.M. , 943 N.Y.S.2d 794, 33 Misc 3d 1223(A) (Fam. Ct. 2011).
Id.
Id.
Id.
Id.
Id.
In 2010, the father filed and was granted a writ of habeas corpus. The mother appeared but did not produce the child. Thereafter, the father filed a petition for custody. The mother cross-filed a petition for custody in New York and in the Ukraine (The Ternopil Court) requesting that court determine the child's place of residence. The Ternopil Court held a hearing while the New York petitions were pending and found that the child's place of residence was Ternopil, Ukraine. The decision was upheld by Ukraine's Appellate Court, noting the child's place of residence is Ternopil, notwithstanding the fact the child was living in the Ukraine without either parent.
Serihy M. at 794.
Id.
Id.
Id.
Id.
Id.
The Kings Family Court analyzed the two-prong test required by Domestic Relations Law § 75-d, to determine whether Ukraine's child custody laws violate fundamental principles of human rights and whether the father was properly noticed and given an opportunity to be heard at the custody proceeding that was held in that country. The court found that while the Ukraine's family law jurisprudence differs from that of New York, there was no indication that the laws, as written or as applied, violate fundamental principles of human rights.
Serihy M. at 794.
Id.
Concerning the due process rights of the father, the court noted that neither party proffered evidence regarding service of process or how the Ternopil Court exercised personal jurisdiction over the father to adjudicate the custody dispute and thus, lacked sufficient evidence to determine whether the Ukraine child custody determination was made under factual circumstances in substantial conformity with the notice provisions outlined in Domestic Relations Law § 75—g. Consequently, the court held it could not determine whether to treat the Ukraine as a state of the United States for purposes of applying the jurisdictional rules outlined in the act.
Serihy M. at 794.
Id.
Notwithstanding the fact that the court could not determine whether to treat Ukraine as a state of the United States, Kings County Family Court held that the fact that the child lives in the Ukraine and not in New York, where the father resides, or New Jersey, where the mother resides, is not an automatic prescription for a finding that the child has no home state. Ultimately, the Kings Family Court held that the parties' location in different states and the child's location in a different country worked against the exercise of jurisdiction on best interest grounds. The child has no connections with New York; she was born in the Ukraine and has lived there practically her entire life, and there was no evidence in New York concerning her care, protection, training, and personal relationships. The father's petition for custody was dismissed for lack of subject matter jurisdiction.
Serihy M. at 794
Id.
Id.
Id.
In the instant matter, the facts and circumstances are quite similar. No evidence has been presented that the child custody laws of UAE or Morocco violate fundamental principles of human rights. As in Serihy M. , the subject child herein resides abroad in Morocco, while Petitioner resides in New York and Respondent resides in Oklahoma. The subject child in the instant matter was born abroad in UAE and has lived there most of her life and has been in Morocco for more than six months prior to the commencement of these proceedings. The subject child has never been to New York or the United States to establish any connection or evidence concerning her care, protection, training, and personal relationships.
Petitioner has remedies to seek relief in either Morocco, UAE or even Oklahoma where the parties are originally from and where Respondent father is currently residing and can establish some connections to that state. New York lacks jurisdiction to hear this matter.
Finally, because this court lacks jurisdiction, the validity of the competing custody orders will not be addressed. It should be noted that neither party provided a certified and attested copy of the custody order for this court to consider.
For the foregoing reasons, it is hereby:
ORDERED , that Respondent's Objection to the registration of Petitioner's 2009 custody order and Motion to Dismiss the Writ of Habeas Corpus is GRANTED ;