Opinion
Docket No. 70608-23
07-07-2023
The PEOPLE v. N.N. A.R. v. N.N. N.N. v. A.R.
Michael Ficchi and Justin Rickman for petitioner in the second above-entitled proceeding and respondent in the third above-entitled proceeding. Nicole DiGiacomo, Samuel Manrique and A.J. Rohe for defendant/respondent in the second above-entitled proceeding and petitioner in the third above-entitled proceeding. Brad Nacht, Attorney for the Children.
Michael Ficchi and Justin Rickman for petitioner in the second above-entitled proceeding and respondent in the third above-entitled proceeding.
Nicole DiGiacomo, Samuel Manrique and A.J. Rohe for defendant/respondent in the second above-entitled proceeding and petitioner in the third above-entitled proceeding.
Brad Nacht, Attorney for the Children.
Esther M. Morgenstern, J.
This record is being made pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) § 110 and the New York Domestic Relations Law (DRL) § 75-i, to address the issue of jurisdiction relating to all matters involving N.N. (hereinafter "the Father") and A.R. (hereinafter "the Mother") and the subject children in the New York and Florida courts.
As of February 9, 2023, the Kings County Integrated Domestic Violence (IDV) Court established temporary emergency jurisdiction over the subject children in this matter pursuant to UCCJEA § 204(a) and DRL § 76-c(1) upon the issuance of a Temporary Order of Custody (TOC) of the children to the Mother, a Temporary Order of Protection (TOP) in favor of the Mother and an emergency order of temporary Child Support in favor of the Mother in the amount of $150 per week pursuant to New York Family Court Act (FCA) § 828(4).
To properly address the basis for this court's jurisdictional decision to establish and maintain temporary emergency jurisdiction in this case, it is necessary to highlight a brief history of the New York litigation and the nature of the Court's ongoing safety concerns in this case.
Procedural History
On December 29, 2022, the Mother filed two petitions in Kings County Family Court (KCFC) in New York State: one for custody of her two children [names and birthdates redacted by the court] (Docket #s V-25571-22 and V-25572-22) and the other was a Family Offense Petition (Docket # O-25569-22) seeking a TOP in favor of herself and the children against the Father. In her custody and family offense petitions, the Mother indicates that she is a "domestic violence victim" and that the Father is "verbally and physical abusive," and that he is "physically abusive towards the petitioner in front of the children."
On December 29, 2022, Family Court Attorney Referee Edward W. Yuskevich issued an Address Confidentiality Order to the Mother as well as an ex parte TOP against the Father in favor of the Mother and the children, which was in effect until February 17, 2023.
On January 19, 2023, the Father was arrested in Kings County, New York (Docket # CR-002226-23KN) and charged in a felony complaint with the following crimes:
Criminal Contempt in the First Degree [PL § 215.51(B)(V)];
Criminal Contempt in the Second Degree [PL § 215.50(3)];
Aggravated Harassment in the Second Degree [PL § 240.30(1)(A)];
Aggravated Harassment in the Second Degree [PL § 240.30(1)(B)];
Harassment in the Second Degree [PL § 240.26(1)].
It was alleged by the complainant-Mother that the Father sent the Mother the following text from an unknown number in violation of the TOP issued in her favor on Docket # O-25569-22: "Can I see the kids, I wouldn't cut you off from the kids if I was in your shoes. You were not letting me speak with them, and you weren't communicating with me [redacted]. If I go through with this, they can stop you from seeing the kids until you pay all court fees. They will be at your house tomorrow to pick up the kids."
On January 19, 2023, the Father was arraigned in Kings County Criminal Court (KCCC) before the Hon. Joshua Glick who issued a TOP in favor of the Mother which was in effect until July 28, 2023.
On January 25, 2023, the Father's criminal case (IDV Docket # 70608-23) and the Mother's family court petitions (IDV Docket #s V-00095/96-23 and O-000094-23) were transferred to IDV2 for February 9, 2023.
On February 7, 2023, the Father filed two petitions in KCFC which were subsequently transferred to IDV2: one for custody of the children (Docket #s V-00127-23 and V-00128-23) and the other was a Family Offense Petition (Docket # O-00129-23) seeking a TOP in his favor against the Mother.
On February 9, 2023, all parties appeared in IDV2. Given the allegations in the Mother's family court petitions and the criminal case against the Father and out of concern for the safety of the Mother and the children this Court appointed Michael Ficchi, Esq. as the mother's attorney and Brad Nacht, Esq. as the Attorney for the Children (AFC). The Father was represented by Edwin Drantivy, Esq.
Based upon the allegations of domestic violence and safety concerns for the children if they were to return to Florida, where there was a pending divorce matter (Lake County, Florida, Case No. 35-2023-DR-000119, In re: The Marriage of N.N., Petitioner/Husband and A.R. Respondent/Wife), the Kings County IDV Court exercised temporary emergency jurisdiction of the children in this case pursuant to the UCCJEA § 204(a) and New York Domestic Relations Law (DRL) § 76-c(1). Although a divorce proceeding was pending in Florida no custody hearing had commenced and no custody determination had been made by the Florida court.
This Court issued TOPs in favor of the Mother on the criminal and family cases. The Court also issued a TOP in favor of the Father on his Family Offense petition which was filed based upon the Father's allegations that the Mother texted him threats of violence against the children from her phone, although it was later determined that these texts were sent by the Father to himself. The Court issued a TOC to the Mother of the subject children and suspended the Father's visits until the AFC had an opportunity to speak to the children and the Court could assess whether ordering visits was in the children's best interest. The matters were adjourned to March 9, 2023.
Shortly after the February 9, 2023 appearance, this Court communicated with the Hon. Brian Welke, the judge assigned to the parties’ divorce proceeding in Florida pursuant to DRL § 75-i(1), to inform him as to the status of the New York cases and that New York was exercising temporary emergency jurisdiction.
On March 9, 2023, all parties and counsel appeared in IDV2. The Father substituted his attorney, Edwin Drantivy, Esq. for Samuel Manrique, Esq. and Nicole DiGiacomo, Esq. The AFC reported that the children were not comfortable visiting with the Father in person and so the Court issued a Temporary Order of Visitation (TOV) for virtual visits Tuesdays, Wednesdays and Thursdays from 5:30-6pm. This Court ordered a New York City Administration for Children's Services (ACS) Court Ordered Investigation (COI) and extended the Mother's TOP to the adjourn date of May 16, 2023.
After the court appearance on March 9, 2023, the Mother was arrested in Kings County (IDV Docket # 71488-23) and charged in a felony complaint with the following crimes:
Criminal Contempt in the First Degree [PL § 215.51(B)(III)];
Criminal Contempt in the Second Degree [PL § 215.50(3)];
Aggravated Harassment in the Second Degree [PL § 240.30(1)(A)];
Aggravated Harassment in the Second Degree [PL § 240.30(1)(B)];
Harassment in the Second Degree [PL § 240.26(1)].
It was alleged by the complainant-Father that the Mother texted the following from her phone to the Father in violation of the TOP issued by this Court on Docket # O-00129-23: "Please answer me, I'm so sorry. Babe please. No problem you want to ignore me? You're making me so fucking emotional! Don't worry, me and [A.] will throw the kids off a bridge before you ever think about taking them away. I'm trying to make us happy again and if I can't be happy then I'll make sure you will never be either. You don't have the kids now we'll [sic] let's see if you can live without them forever! I hate you."
On March 10, 2023, the Mother was arraigned in KCCC before the Hon. Jennifer A. Trubidy who issued a TOP in favor of the Father which was in effect until September 29, 2023.
On March 17, 2023, this Court was informed by the Mother's attorney via email that the Father was attempting to interfere with the Mother's employment in New York, in violation of her TOP, and directed the attorneys to appear virtually in IDV2 via Microsoft Teams. After the conference, this Court suspended the Father's virtual visits with leave to advance the case after the AFC spoke with the children.
This Court was informed via counsel that on April 6, 2023 Judge Welke issued an order that directed the Father to schedule an evidentiary hearing. On May 16, 2023, all parties and counsel appeared in IDV2. After a conference, the Court reinstated the Father's virtual visitation with the children as the AFC indicated on the record that the children were not yet comfortable with in-person visits. This court continued the Mother's TOC and extended the civil and criminal TOPs in favor of both parties to the adjourn date of June 15, 2023.
On June 15, 2023, all parties and counsel appeared in IDV2. The People moved to dismiss the Mother's criminal case (Docket # 71488-2023) in the interests of justice based upon the subpoenaed phone records that were received by the People. The People determined that the phone line that the Father alleged was utilized by the Mother to text the Father in violation of his TOP was in fact a phone line in the Father's control and that the Father did text himself in order to have the Mother arrested. This Court dismissed and sealed the case against the Mother upon the People's application. The People indicated that there was no Grand Jury action on the Father's criminal case and the case was adjourned to August 7, 2023.
On June 15, 2023, this Court continued the Mother's TOC and issued a TOV to the Father for in-person visits supervised by Comprehensive Family Services (CFS) in addition to his ongoing virtual visits. To date the Father has yet to provide CFS with the required documentation and payment to commence his supervised visits.
On June 27, 2023, the New York and Florida courts once again communicated pursuant to UCCJEA § 110(c) and DRL § 75-i(3) to discuss the procedural status of the New York and Florida cases.
Temporary Emergency Jurisdiction
UCCJEA § 204(a) and DRL § 76-c(1) recognize this Court's authority to exercise temporary emergency jurisdiction over the children if they are present in this state and the children have been abandoned or it is necessary in an emergency to protect the children, a sibling or parent of the child. In the case at bar, the Mother and children fled from Florida to New York in December of 2022 to seek refuge and safety from the Father and commenced civil litigation in Family Court based upon allegations of significant domestic violence including physical violence in the presence of the children. Shortly thereafter, the Father was arrested in New York and charged with Contempt in the First Degree, a Class E Felony, for allegedly texting the Mother in violation of a New York Order of Protection in favor of the Mother. The Mother was later arrested and charged in a felony complaint with Contempt in the First Degree, for allegedly texting the Father threats of violence against herself and the children in violation of a New York Order of Protection in favor of the Father.
Prior to the establishment of the IDV Courts in New York these cases would have been heard by different civil and criminal court judges in Kings County with little to no communication and information sharing between the courts. However, the Kings County IDV Court is uniquely equipped to handle these cases given its protocols, experience and utilization of the "one family, one judge" model. Once the Court determined that this family had active civil and criminal domestic violence cases in Kings County, all of their cases were transferred to this Court. Furthermore, the Kings County IDV Court has cross-trained attorneys and Attorneys for Children that are available for assignment in eligible cases where litigants and children require representation.
The Court was able to provide the Mother with an attorney to represent her on the issues of custody and visitation and just as importantly, the Court was able to appoint an AFC to represent the children's interests and voice their concerns. Additionally, each New York City borough has a Family Justice Center available to assist victims of Domestic Violence by providing "one-stop shopping" for domestic violence survivors by placing lawyers, police, dedicated domestic violence prosecutors, counselors, clergy, and other service providers under one roof. The Kings County Family Justice Center is located in the same building as the Kings County District Attorney's Office one block away from the IDV Court.
This Court issued its initial TOC in favor of the Mother on February 9, 2023. The Father has received only virtual visits with the children, based upon the history of the case and the recommendation of the AFC after meeting with the children. The Father's virtual visits were briefly suspended, upon the application of the AFC, due to the Father's inappropriate comments during the virtual visits and the Court has issued an order for in-person supervised visits through Comprehensive Family Services (CFS) subject to his submission of the required paperwork and payment to CFS.
The Court's concern for the safety of the Mother and children was heightened after the most recent record made by the Kings County District Attorney's Office on June 15, 2023 (cached at https://www.nycourts.gov/reporter/webdocs/ARvNNRedactedTranscript6-15-23.pdf, https://www.nycourts.gov/reporter/webdocs/PeoplvARRedactedTranscript6-15-23.pdf ) upon dismissing the criminal case against the Mother in the interests of justice. The Mother was arrested on a felony complaint based upon the Father's false allegation that the Mother texted him threats of violence against the children in violation of an active Order of Protection. The People revealed that they subpoenaed the phone records at issue in the Mother's criminal case and that the phone number that texted the Father actually belonged to the Father and not the Mother. This shocking revelation highlights the lengths to which the Father would go to attempt to manipulate the system, hurt the Mother and improve his position with the courts. It also bolsters this court's cause for concern for the Mother and children's safety and demands close monitoring from this court.
As such, based upon the children's presence in New York and the imminent risk of harm they face if they were to return to Florida at this time, this Court properly exercised its discretion to exercise temporary emergency jurisdiction in this case.
Duration of Temporary Emergency Jurisdiction
While it is undisputed that the parties have a pending divorce matter in the state of Florida, no previous child-custody hearing has commenced and no custody determination has been made by the Florida court. Pursuant to UCCJEA § 204(b) and DRL § 76-c(2), because Florida has not commenced a custody hearing or made any custody determination, this Court's TOC to the Mother remains in full force and effect.
Furthermore, DRL § 76-c(2) grants New York Courts that have exercised temporary emergency jurisdiction in cases where no previous child-custody hearing and no custody determination has been made significant discretion in determining the duration of the emergency jurisdiction:
"Where the child who is the subject of a child custody determination under this section is in imminent risk of harm, any order issued under this section shall remain in effect until a court of a state having jurisdiction under sections seventy-six through seventy-six-b of this title has taken steps
to assure the protection of the child."
In the case at bar, given the Court's safety concerns for the Mother and children and the resources that this Court has available to monitor this case efficiently and safely, the Kings County IDV Court shall retain temporary emergency jurisdiction until the conclusion of the criminal case against the Father and the pending Family Offense Petitions in New York and at such time as this Court deems that it safe for the Mother and children to return to Florida.
This Court shall maintain open communication with the Florida court pursuant to UCCJEA § 204(d) and DRL § 76-c(4) to attempt to resolve the jurisdictional issue and protect the safety of the parties. Furthermore, in determining whether an emergency exists the Violence Against Women's Act (VAWA), 18 U.S.C. § 2265, requires a court to give full faith and credit to a protective order issued in another State if the order is made in accordance with the VAWA. As such, this court requests respectfully that Florida give full faith and credit to the New York Temporary Orders of Custody and Temporary Orders of Protection.
Inconvenient Forum
Pursuant to UCCJEA § 207 and DRL 76-f :
(a) A court of this State which has jurisdiction under this [Act] 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 court's own motion, or request of another court.
(b) 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:
(1) whether domestic violence has occurred and is likely to continue in the future and which State could best protect the parties and the child;
(2) the length of time the child has resided outside
this State;
(3) the distance between the court in this State and the court in the State that would assume jurisdiction;
(4) the relative financial circumstances of the parties;
(5) any agreement of the parties as to which State should assume jurisdiction;
(6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(7) the ability of the court of each State to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) the familiarity of the court of each State with the facts and issues in the pending litigation.
(c) 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.
(d) A court of this State may decline to exercise its jurisdiction under this [Act] 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.
While no formal determination has been made as to whether New York or Florida is an inconvenient forum and the parties shall be permitted to submit evidence to support any argument on this issue pursuant to UCCJEA § 207(b) and DRL § 76-f(2), it is clear that as of this writing New York is the more convenient forum to make informed decisions regarding custody and visitation. The children have now been residing in New York for over six months and have an AFC assigned to them to voice their concerns directly to the Court, something that is not available to them in Florida.
Furthermore, this Court acknowledges that the UCCJEA is a jurisdictional statute that does not include "best interest" language or guidelines as to how to decide the issue of custody and visitation. However, given the nature of the proceedings, New York is the state with the closest connection to and most evidence regarding the children and should be making decisions as to custody at this juncture.
Given the nature of the allegations made by the Mother and the fraudulent actions committed by the Father here in New York, this Court has serious concerns that the Father is attempting to force a jurisdictional issue between Florida and New York as a means to punish the Mother for fleeing to New York. If the New York and Florida courts were to order the Mother and children to immediately relocate it would permit an alleged batterer to continue to assert power and control over the victim's life and place them in immediate danger.
Significantly, UCCJEA § 207(d) and DRL § 76-f(4) allows for a court to decline to exercise jurisdiction over the children if a child-custody determination is incidental to an action for divorce or other proceeding, while still retaining jurisdiction over the divorce.
The cornerstone of the UCCJEA is active and open communication between the courts and the protection of the litigants’ due process rights and their rights to be heard. It is with this goal in mind that the Kings County IDV Court has issued this memorandum pursuant to UCCJEA §§ 110, 112 and 204 and DRL §§ 75-i, 75-k and 76-c, which includes a copy of the transcripts from the June 15, 2023 criminal and civil court appearances as well as the dates and times of prior conversations between the New York and Florida judges.
This Court looks forward to scheduling an inter-jurisdictional conference between New York and Florida to address the jurisdictional issue between the courts and to give the parties an opportunity to provide evidence.
The Kings IDV Court looks forward to working closely with the Florida courts to come to a just and safe resolution for the subject children and litigants.