Opinion
V-xxxxx-xx/12 V-xxxxx-xx/13
07-08-2015
A.A., Petitioner, v. A.A., Respondent.
Darryl Nicholas, Esq. for the petitioner-mother Geoffrey Greenlees, Esq. for the respondent-father The Children's Law Center, by Sara Hiltzik, Esq., attorney for the children
Darryl Nicholas, Esq. for the petitioner-mother
Geoffrey Greenlees, Esq. for the respondent-father
The Children's Law Center, by Sara Hiltzik, Esq., attorney for the children
Robert D. Mulroy, J.
The children who are the subjects of these child custody cases are J. A. and C. A.. Petitioner is the mother of these children. Respondent is their father. The mother has filed petitions against the father seeking an order of custody of the children. The father has filed petitions against the mother seeking an order of visitation with the children. The attorney for the children has now moved for an order pursuant to DRL 76-f dismissing both petitions on the ground that New York State is no longer a convenient forum. Petitioner-mother supports the motion, conditioned on the court granting a stay of the proceedings. Respondent-father opposes the motion, arguing the case has been pending in Kings County Family Court for two years, he has retained private counsel in New York and has paid for a forensic evaluator.
For purposes of clarity, since the mother filed first she will be denominated the petitioner and the father the respondent.
This case was commenced by the mother's filing her custody petition on May 1, 2013 and the father filing his visitation petition on June 29, 2013. On June 18, 2013 the court was informed that respondent-father was under a criminal investigation in North Carolina for an incident alleged to have occurred between respondent and petitioner's then fifteen year old daughter. Respondent is not the father of that child. The criminal investigation resulted in respondent being convicted of taking indecent liberties with a minor in violation of North Carolina General Statutes section 14-202.1. This offense is designated a Class "F" felony. The conviction was dated September 4, 2014. It prevents respondent from leaving the state of North Carolina without the permission of his probation officer. It also prevents him from communicating or socializing with anyone under the age of eighteen unless supervised by an adult. Respondent is under supervised probation for thirty-six months from September 4, 2014.
The North Carolina Judgment provides that probation supervision could be transferred to New York. As noted in the decision of the prior judge on reargument, no evidence was presented that such a transfer took place. No one has asserted that supervision has been transferred from North Carolina.
On August 6, 2014 petitioner-mother filed a motion seeking an order permitting her to relocate with the subject children to the state of Maryland. On August 13, 2014 the judge to whom the case had previously been assigned issued an order denying the mother's relocation motion pending the completion of trial. The record of this case indicates that the mother moved with the children to Maryland, despite the denial of her motion. On September 9, 2014 petitioner-mother filed a motion seeking reargument of the relocation motion based on the above-mentioned criminal conviction of respondent. On November 10, 2014 the prior judge granted the reargument motion and issued an order permitting the mother to remain in Maryland with the children pending completion of the trial. Petitioner has since filed a custody case in the Circuit Court for Howard County, Maryland.
A court having jurisdiction over a child custody matter may decline to exercise its jurisdiction if it determines that it is an inconvenient forum and that the court of another state is a more convenient one. DRL 76-f; Miller v. Shaw, 123 AD3d 1131, 999 N.Y.S.2d 192 (2d Dept., 2014). The determination to decline or not to decline jurisdiction is a discretionary one. Greenfield v Greenfield, 115 AD3d 645, 981 N.Y.S.2d 115 (2d Dept., 2014).
In making its determination the court must consider the following factors listed in DRL 76-f(2):
(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.
DRL 76-f(2).
Consideration of these factors is mandatory. Mojica v Denson, 120 AD3d 691, 991 N.Y.S.2d 443 (2d Dept., 2014).
Here, a consideration of the enumerated factors supports the motion to dismiss for forum non conveniens.
Subparagraph (a)
The respondent has been convicted of taking indecent liberties with a minor sibling of the two subject children and as a result of that conviction is not able to leave the State of North Carolina without the permission of his probation officer. He is also prohibited from communicating or socializing with anyone under the age of eighteen unless supervised by an adult. His probation supervision continues until September, 2017. And while no evidence has been submitted on the issue of whether abuse of a child would likely continue in the future, the State of Maryland would be better equipped to deal with that issue since that is the state where the children currently reside. Presumably there would be available and geographically convenient mental health professionals in Maryland who could address the impact respondent's abuse of a sibling might have on his relationship with these subject children.
Subparagraph (b)
The children have resided with the mother in Maryland since September, 2014. They are attending school and establishing a life there. Petitioner has already been granted permission to reside in Maryland pending this custody litigation. If this court were to retain jurisdiction the trial date would not be until the autumn of this year, perhaps even later, at which point the children would have resided in Maryland for over one year. The length of time the children have resided in Maryland favors that state assuming jurisdiction. See, e.g. McCarthy v Brittingham-Bank, 117 AD3d 1060, 986 N.Y.S.2d 614 (2d Dept., 2014).
Subparagraph (c)
The distance between New York and Maryland, the court that would assume jurisdiction, is less relevant since neither party lives here in New York and is not likely to return here any time soon—the mother does not wish to reside in New York, she has been granted permission to reside in Maryland pending the completion of this litigation and the father is under supervised probation in the State of North Carolina until September, 2017. More relevant is the distance between Maryland and North Carolina since that would be the distance respondent would be obliged to travel for trial, if he is permitted to go there at all. The distance between North Carolina and Maryland is obviously much less than the distance between North Carolina and New York, mitigating in favor of New York declining jurisdiction.
Subparagraph (d)
Evidence of the relative financial circumstances of the parties has not been submitted as part of this motion. Respondent has opposed the motion on financial grounds, arguing that he would be obliged to retain counsel to represent him in Maryland. While that may be true, the court notes that attorneys fees will be a cost of litigation in whichever forum this case is heard. There is no evidence that the cost of legal services in North Carolina will be any greater than the cost in New York. Further, respondent argues that he has already paid his share of the expense for the forensic expert. He has not, however, shown that the forensic witness that he has partially paid for could not continue on the case, submit her report, and be a witness in a case filed in Maryland.
Subparagraph (e)
There is no agreement between the parties as to which state should try this case.
Subparagraph(f)
Evidence of the children's daily lives regarding school, after school activities, neighborhood friends, medical treatment, mental health treatment and other issues are predominantly located in Maryland. Should there be a need for the children to testify or be interviewed in camera, requiring a trip to Brooklyn would be a much greater imposition than their appearing in a court in Maryland. This is particularly compelling since the child C.A. has Down's Syndrome and the child J.A. is autistic. Further, it would be a significant advantage for the children to be represented by an attorney located in the state where they currently reside and communication would be facilitated by such an arrangement. Paderno v. Shvetsova, 96 AD3d 762, 945 N.Y.S.2d 761 (2d Dept., 2012). On the whole, the court finds that evidence of the children's present and future care and well-being is located predominantly in Maryland, making that state a more convenient forum to determine custody. Balde v Barry 108 AD3d 622, 969 N.Y.S.2d 508 (2d Dept., 2013).
Likewise, Maryland would be a more appropriate forum to determine the father's visitation petition since, should the father be given permission to travel, the visits would take place at least in part in the state where the children reside. Paderno v Shvetsova, supra. To the extent that the father is seeking visits with the children in North Carolina, this court is in no better position to make that determination than a Maryland court.
Subparagraph(g)
If this court were to try these petitions the parties would be required to travel between Brooklyn and their respective states, perhaps multiple times. The children would either have to be transported as well or other child care arrangements would have to be made. Non-party witnesses would likewise be required to travel to Brooklyn. And while the court has the option of allowing certain testimony to be given telephonically or through video, that procedure is not appropriate for every witness. This is particularly true in a child custody and visitation case where the court's decision is largely determined by its assessment of the credibility of the parties and their witnesses. Haughton v. Tsang, 118 AD3d 883, 987 N.Y.S.2d 244 (2d Dept., 2014). For this reason, the court in its discretion may decline to allow evidence to be submitted electronically. Desroaches v. Desroches, 70 AD3d 686, 892 N.Y.S.2d 875 (2d Dept., 2010).
Subparagraph (h)
The Kings County judge who presided over this case from its inception in 2013 until March, 2015, is no longer presiding in Family Court. The current judge to whom the case is assigned, this writer, has only been assigned to the case for three months, from March, 2015 to date. A trial has not yet commenced. This court has heard no testimony and has taken no documentary evidence with regard to the issues that ultimately must be decided. This court would not be in any greater position to try this case than a judge in Maryland and any advantage there would be to keeping the case before this court based upon the procedural history would be marginal.
Based on a consideration of each of these factors, New York is no longer a convenient forum for this case and Maryland is a more convenient one.
Despite these factors, respondent opposes the motion on the additional ground that granting it would be rewarding petitioner for her arguably contumacious behavior of removing the children from the State of New York in violation of an order denying her permission to do so. Certainly, this court is aware of that history and is reluctant if not loathe to countenance the willful disregard of a lawful and unambiguous order. Indeed, disregard of court orders is a factor used by courts in determining whether a parent could be awarded custody of a child. See, e.g. Plaza v Plaza, 305 AD2d 607, 759 N.Y.S.2d 368 (2d Dept., 2003); Greene v Gordon, 7 AD3d 528, 776 N.Y.S.2d 73 (2d Dept., 2004). A court may even decline jurisdiction based upon the unjustifiable conduct of a party that creates that jurisdiction. DRL 76-g. The court notes however that no contempt motion or violation petition was filed against petitioner based upon her move to Maryland and she was subsequently granted leave to relocate.
This option is not available if, as is the case here, the court that would otherwise have jurisdiction has determined that it is no longer a convenient forum. DRL 76-g((1)(b).
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In any event the interest in punishing or at least not rewarding the violation of court orders must at times be subordinated to considerations of what is in the best interest of the children, even in the face of an improper relocation. Van Houten v Van Houten, 156 AD2d 694, 549 N.Y.S.2d 452 (2d Dept., 1989); Swain v. Vogt, 206 AD2d 703, 614 N.Y.S.2d 780 (3d Dept., 1994).
It is in the children's best interest for New York to decline jurisdiction in favor the more appropriate and convenient forum in the State of Maryland. The motion to dismiss based on forum non conveniens is granted. DRL 76-f (3) provides that upon granting such a motion the court must stay the proceedings conditioned on the commencement of a new custody case in the appropriated forum. Since petitioner has already commenced a proceeding in Maryland the issue of a stay is moot. However, dismissal will be conditioned on petitioner accepting service of a visitation petition filed by respondent-father in the State of Maryland.
Dated: July 8, 2015
_______________________________
Hon. Robert D. Mulroy