Opinion
Index No. XXXXX
10-14-2021
In the Matter of a Proceeding Under Domestic Relations Law Article 5-A JOHN B, Barbara B, Petitioners, v. TALIA K, Corey K, Respondents.
Michael D. Schmitt, Esq., Attorney for John B and Barbara B Jon M. Stern, Esq., Attorney for Talia K and Corey K Darcie Bahr, Esq., Attorney for the Child
Michael D. Schmitt, Esq., Attorney for John B and Barbara B
Jon M. Stern, Esq., Attorney for Talia K and Corey K
Darcie Bahr, Esq., Attorney for the Child
Dandrea L. Ruhlmann, J.
This Decision and Order supplements the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) conference held on the record on September 29, 2021 pursuant to Domestic Relations Law (DRL) § 75-i between this Court and the Honorable Gisela Laurent, Circuit Judge of the Circuit Court of the Ninth Judicial Circuit, in and for Orange County, Florida, all of the parties and New York counsel and Petitioners’ Florida counsel. John B and Barbara B ("Petitioner-Parents") sought to register an Order of Honorable Gisela Laurent, Circuit Judge of the Circuit Court of the Ninth Judicial Circuit, Orange County, Florida (Case No.: xx-xxxx-xx-xxxx) ("the Florida Order"). Talia K and Corey K ("Respondent-Cousins") filed a timely objection to the registration. Both Courts agreed that Florida was the home state of the subject child, Javonni B (DOB: XX/XX/XXXX). This Court hereby reserves Respondent-Cousins’ right to renew their request for a hearing prior to registering the Florida Order.
Procedural History
Javonni was a resident of Florida prior to Respondent-Cousins filing for custody by Order to Show Cause on February 1, 2021. This Court denied the relief sought in their Order to Show Cause and calendered the case to proceed by petition. Finding no emergency existed, this Court returned Javonni to the Petitioner-Parents in Florida by Order to Show Cause, entered March 9, 2021. During the pendency of the case, Javonni continued to reside in Florida. All parties acquiesced to this Court's exercise of jurisdiction (see DRL § 76-g (1)(a) ; cf. Matter of Bridget Y. v. Kenneth M.Y., 92 A.D.3d 77, 86-87, 936 N.Y.S.2d 800 [4th Dept. 2011] [wherein at the commencement of the proceeding in New York, the parents had already commenced a proceeding in New Mexico]). This Court entered temporary orders that provided Respondent-Cousins with reasonable telephone contact and a short visit with Javonni at their expense. Petitioner-Parents thereafter sought to register the Florida Order, which, inter alia, enjoined Javonni's removal from Florida. Respondent-Cousins filed a timely objection to the registration of the Florida Order. Upon receipt of the Florida Order this Court sent by certified mail in accordance with DRL §§ 75-g and 77-d, the Notice of Request For Registration of an Out-Of State Child Custody or Visitation Order- UCCJEA to Respondent-Cousins. Further, Petitioner-Parents personally served Respondent Talia K on September 28, 2021, who also accepted substituted service for Respondent Corey K on the same day. This Court "immediately [sought to] communicate with the [Florida] court" to address the issue of jurisdiction (see DRL §§ 75-i ;76-c (4); 76-e).
Communication Between Courts under the UCCJEA
In accordance with Domestic Relations Law §§ 75-i and 76-e the Court stayed its proceedings and arranged for an on the record communication between the two courts, the parties and their counsel and the Petitioner-Parents’ counsel in Florida on September 13, 2021 at 9:30 a.m. The Court sent a link to the Virtual Session via TEAMS application to all counsel, including Respondent-Cousins’ counsel reflecting that the purpose of this scheduled court appearance was a UCCJEA Conference (see DRL § 75-i (2) ). On September 10, 2021 Respondent-Cousins’ counsel advised the Court that he was not available, so the Court, at his request, rescheduled the UCCJEA Conference for September 29, 2021 pursuant to Domestic Relations Law § 75-i. The Court also followed up with an email advising all counsel of the same.
Respondent-Cousins’ counsel alleged during the UCCJEA conference that he was unaware of the UCCJEA conference and was not able to properly prepare for it. Yet on September 10, 2021 he sent this Court a copy of his email to the law clerk to Hon. James Walsh asking for an adjournment explaining he had a scheduling conflict because he needed "to schedule a UCCJEA conference on September 29, 2021 at 9:30 a.m." which was in conflict with an appearance before Judge Walsh at 10:00 a.m. on September 29, 2021.
Florida is the Child's Home State Under the UCCJEA
Although adoption is excluded under the UCCJEA (see infra ), the UCCJEA was specifically designed to deal with all custodial disputes - even those of parents versus non-parents (see Matter of Bridget Y. , 92 A.D.3d 77, 936 N.Y.S.2d 800 ). The UCCJEA was enacted in New York in 2001 to provide a remedy for interstate visitation and custody cases because lack of uniformity complicates the enforcement process. The UCCJEA also was enacted to harmonize state law with federal legislation namely the Parental Kidnapping Prevention Act (PKPA) which was enacted in 1980 to address the interstate custody jurisdictional problems that continued to exist ( 28 USC § 1738 A). Both laws - uniform since their enactments - limit the scope of the enforcing court's inquiry to whether the decree court had jurisdiction and complied with due process in rendering the original custody determination. No further inquiry is necessary because neither the UCCJEA nor the PKPA allow an enforcing court to modify a custody determination (Uniform Child Custody Jurisdiction and Enforcement Act Prefatory Notes and Comments, p 5).
After the communication between courts on September 29, 2021, this Court found that Florida was Javonni's home state as defined by the UCCJEA (see DRL §§ 75-a (7) ; 75-i and 76-c (4)). Petitioner-Parents are Javonni's biological maternal great- grandparents. Petitioner-Parents adopted Javonni on April 2, 2019 by Final Judgment of Circuit Court Judge of the Twentieth Judicial Circuit, Charlotte County (Hon. Mary C. Evans). Javonni resided in Florida from birth until he visited with Talia K, cousin of Javonni's (deceased) biological mother, Morgan B, and Talia's husband, Corey K, in New York. Javonni's visit began in New York on March 16, 2020, immediately before the implementation of state and federal COVID-19 restrictions.
President Donald J. Trump signed an emergency declaration in response to the coronavirus pandemic on March 13, 2020; New York State Governor Andrew M. Cuomo declared a state of emergency on March 14, 2020.
The parties dispute whether Javonni returned to his home in Florida in May or June of 2020, yet do agree he was back home in Florida by June 22, 2020 and remained there until late July, 2020. Petitioner-Parents executed a Temporary Guardianship Agreement on July 24, 2020 and thereafter Javonni with Respondent-Cousin, Talia K, returned to New York on July 25, 2020.
Javonni returned home again to Florida on October 5, 2020 to undergo a scheduled surgical procedure. In late October, Petitioner-Parents agreed to have Javonni return to New York with Respondent-Cousin Talia, so he might see snow before he began kindergarten in Florida the following year. Thereafter communications between the parties began to fray and when Respondent-Cousins failed to exchange Javonni with his parents in Charlotte, North Carolina in January 2021, as planned, this custodial dispute arose. Under the UCCJEA, jurisdiction lies in home state of a child, absent an emergency. This Court and the Florida Court agree that Florida, not New York, is Javonni's home state. The Attorney for the Child advocating for Javonni's preference, recognizes Florida as the child's home state. Nor is there a basis for this Court to exercise emergency jurisdiction. Javonni's earlier " ‘mere physical presence ... in this [s]tate is not a sufficient basis per se for the exercise of jurisdiction ... There must, in addition, be an emergency that is real and immediate, and of such nature as to require [s]tate intervention to protect the child from imminent physical or emotional danger’ " ( Matter of Bridget Y., 92 A.D.3d at 87, 936 N.Y.S.2d 800, quoting Severio P. v. Donald Y. , 128 Misc. 2d 539, 542, 490 N.Y.S.2d 439 [Fam. Ct. Richmond County 1985] ; see Alger v. Jacobs, 169 A.D.3d 1415, 1416-1417, 93 N.Y.S.3d 492 [4th Dept. 2019] ; Fleet v. Scarola, 221 A.D.2d 339, 339, 633 N.Y.S.2d 362 [2d Dept. 1995], lv denied 87 N.Y.2d 965, 642 N.Y.S.2d 192, 664 N.E.2d 1254 [1996] ; cf. Wells v. Van Coutren , 200 A.D.2d 577, 606 N.Y.S.2d 295 [2d Dept. 1994] [the Appellate Division, Second Department remitted the matter to the trial court for a determination of whether the trial court should have exercised emergency jurisdiction in view of the child's credible threat of suicide]). New York too is an inconvenient forum (see DRL 76-f ). The UCCJEA does not contemplate that "parents of a child should be obligated to travel to a distant state and to incur great expense and inconvenience in order to litigate their superior right to custody against a nonparent" ( Mazur v. Mazur , 207 A.D.2d 61, 66, 621 N.Y.S.2d 817 [4th Dept. 1994], lv denied 85 N.Y.2d 803, 624 N.Y.S.2d 373, 648 N.E.2d 793 [1995] ).
Under DRL § 75-b Adoption Is Governed By Other Laws
The UCCJEA does not govern an adoption proceeding or a proceeding pertaining to the authorization of emergency medical care (see DRL § 75-b ). The UCCJEA (enacted both in New York and Florida) remains the governing law of any interstate custodial dispute. The UCCJEA, however, was not the governing statute for the original Florida adoption petition and in fact did not prevent Petitioner-Parents from seeking to confirm the adoption of Javonni in Florida since the UCCJEA specifically excludes adoptions. Although the UCCJEA governed the Florida and New York Court jurisdictional determination on custodial/visitation issues concerning Javonni, it did not prohibit the confirmation of his adoption in Florida.
There is a conflict between federal and state law however because courts interpreting the PKPA have held adoption proceedings come within the statutory definition of custody proceedings and therefore presumably under the purview of the UCCJEA - save for its exception (Mazur, 207 A.D.2d 61, 66, 621 N.Y.S.2d 817 ; see 28 USC § 1738A [b] [3]; State of Colorado in the Interest of A.J.C. , 88 P.3d 599 [Sup. Ct. 2004] ).
Indeed, the PKPA has been utilized by at least one New York court to enforce grandparents’ rights, but such case is distinguishable (see Wells v. Van Coutren , 200 A.D.2d 577, 606 N.Y.S.2d 295 [2d Dept. 1994] [wherein the court declined to recognize a Pennsylvania determination on due process grounds of a grandfather who acted as a custodian to the child after her father's death under the Parental Kidnapping Prevention Act. The Appellate Division, Second Department remitted the matter for a determination of whether the trial court should exercise emergency jurisdiction in view of the child's credible threat of suicide]). The PKPA states: "Before a child custody determination is made reasonable notice and an opportunity to be heard shall be given to the contestants ... [including] any person who has physical custody of a child." Again, Petitioners, not Respondents have retained custody of Javonni since his adoption.
A Court's lack of "jurisdiction is not waivable" and "may be raised at any stage of the action" (Moulden v. White , 49 A.D.3d 1250, 1251, 856 N.Y.S.2d 329 [4th Dept. 2008] ; see also Matter of Anna M. , 93 A.D.3d 671, 673, 940 N.Y.S.2d 121 [2d Dept. 2012] ["[A] default must be vacated once the movant demonstrates a lack of personal jurisdiction, and the movant is relieved of any obligation to demonstrate a reasonable excuse for the default and a potentially meritorious defense"]; Matter of Anthony C. , 216 A.D.2d 939, 629 N.Y.S.2d 344 [4th Dept. 1995] [case remitted to Family Court to determine if it acquired jurisdiction over each parent]).
The Constitution of the United States of America requires that "[f]ull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state" ( U.S. Constitution, Article IV, Section 1 ). This Court recognizes the Florida Order and affords full faith and credit to the adoption - as it must. Petitioners are officially Javonni's parents.
Nonetheless even if this Court found Petitioner-Parents willfully violated a temporary order of this Court, the ultimate question is whether the recent Florida Order confirming Javonni's adoption divests New York State Courts from continuing to exercise jurisdiction over this pending inter-familial custodial-visitation dispute between his parents and his cousins. The answer is yes since (a) a court of this state [has] determined that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this state ... and/or (b) a court of this state or a court of another state determined that the child, the child's parents and any other person acting as a parent do not presently reside in this state (see DRL §§ 75-a (7) and 76 (1)(a) ). A "person acting as a parent" has had physical custody of a child for a period of six consecutive months, including any temporary absence and "who has been awarded legal custody by a court" or "claims a right to custody" ( DRL § 75-a (13) ). Here, Javonni's return to his parents’ home in Florida in May or June of 2020 in part to undergo pre-surgical medical care, is not a "temporary absence" from New York within the meaning of the statute (such as a vacation outside of New York and/or Florida). Indeed "[t]he fact that a parent confers temporary custody of [a] child upon a nonparent does not give rise to a colorable claim of right to custody" ( Mazur, 207 A.D.2d at 65, 621 N.Y.S.2d 817 ).
The Matter of Benzin v. Kuty, 109 A.D.3d 1175, 971 N.Y.S.2d 719 (4th Dept. 2013) is instructive. In Matter of Benzin , the Court held that a pending family court custodial dispute between a biological mother and child was properly dismissed because father's wife adopted the child by order of Surrogate's Court divesting biological mother of all rights (citing Domestic Relations Law § 117 [1] [a] ). Father and his wife failed to provide notice of the adoption to the mother as expressly required by Domestic Relations Law § 111(3) (a). The Appellate Division for the Fourth Department held the Family Court lacked authority to vacate or ignore the adoption order, "inasmuch as that court could ‘not arrogate to [itself] powers of appellate review’ " ( id. at 1176, 971 N.Y.S.2d 719, quoting Dain & Dill, Inc. v. Betterton, 39 A.D.2d 939, 333 N.Y.S.2d 237 [1972] ; cf. Wells , 200 A.D.2d 577, 606 N.Y.S.2d 295 ).
The Florida Order confirmed the Petitioners’ earlier adoption of Javonni and enjoined Javonni from leaving Florida; this Court's temporary order allowed visits, and only at Respondent-Cousins’ expense, so as to maintain the loving relationship between Javonni and Respondent-Cousins. Since Respondent-Cousins are not Javonni's custodians, and the Court's temporary order afforded them limited visitation rights, the Florida Order clearly overrides this Court's determination.
Registration of the Certified Florida Order and DRL § 77-d Hearing Request
At the UCCJEA conference on September 29, 2021, this Court granted Petitioner-Parents’ application to register the certified Florida Order over Respondent-Cousins’ objection. Respondent-Cousins contest the validity of the registered order and timely requested a hearing ( Matter of Pava v. Atkinson , 180 A.D.3d 917, 116 N.Y.S.3d 614 [2d Dept. 2020] lv denied 35 N.Y.3d 913, 2020 WL 5414959 [2020] ).
The Florida Order (issued by the Honorable Gisela Laurent, Circuit Court of the Ninth Judicial Circuit, Orange County, Florida (case no. 48-2021-DR-9946)) provides, inter alia , as follows:
(a) The Adoption executed by Judge Evans, Charlotte County, Florida case no. xx-xx-xxx on April 2, 2019 grants the Petitioners the privilege and legal rights to be the parents of the child, Javonni B;
(b) No action was ever timely filed by any party having legal standing under Florida Statutes including but not limited to § 86.011; § 63.142(4); § 63.182 and § 63.172(1)(b);
(c) The New York order issued on July 30, 2021, which granted the Respondents visitation with the child is invalid and unenforceable in Florida; and
(d) A temporary and Permanent Injunction prevents the removal of this child from Florida without notice to the other party.
Significant, the Florida Court (Hon. Gisela Laurent) on September 29, 2021 both confirmed that it has not relinquished jurisdiction and that its determination has not been vacated, stayed, or modified. Further the Florida Court after addressing the Petitioner-Parents’ ex parte application, expressly dispensed with any notice requirement to the Respondent-Cousins, and issued the Florida Order that Petitioner-Parents now seek to register. Respondent-Cousins object to this lack of notice by the Florida Court. Under Domestic Relation Law § 75-g (1)(d), notice may be "prescribed by the law of the state in which service is made." More important, the Florida Court did not require notice to the Respondent-Cousins, because the Florida Order (as an order confirming the adoption of Javonni by the Petitioner-Parents) is not governed by the UCCJEA. Again this Court is not empowered to act in appellate role, nor can it arrogate an appellate review of the Florida Order (see Matter of Benzin v. Kuty , 109 A.D.3d at 1176, 971 N.Y.S.2d 719 ).
A "hearing" under Domestic Relations Law § 77-d is not sharply defined: The Court, nonetheless will allow Respondent-Cousins to renew their application for an evidentiary hearing. At such hearing, this Court shall confirm the registered Florida Order unless Respondent-Cousins establish that:
(a) the issuing court did not have jurisdiction;
(b) the child custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so; or (c) the person contesting registration was entitled to notice, but notice was not given in accordance with the standard of DRL § 75-g in the proceedings before the court that issued the order for which registration is sought.
NOW, THEREFORE, it is ADJUDGED that a UCCJEA conference was held on the record on September 29, 2021, with all parties and counsel, the Petitioners’ counsel in Florida and the Honorable Gisela Laurent, Circuit Judge of the Circuit Court of the Ninth Judicial Circuit, for Orange County, Florida present, and thereby determined that Florida is the home state of the subject child, Javonni B (DOB: XX/XX/XXXX); and it is further
ORDERED that this Court hereby reserves Respondent-Cousins’ right to renew their request for a DRL § 77-d hearing by letter application, as they timely objected to the registration of the certified order of the Circuit Judge of the Circuit Court of the Ninth Judicial Circuit, Orange County, Florida (case no.: xx-xxxx-xx-xxxx) (Hon. Gisela Laurent); and it is further
ORDERED that this Decision and Order hereby supplements the record created with all parties and New York counsel, the Petitioner-Parents’ Florida counsel and the Honorable Gisela Laurent, Circuit Judge of the Circuit Court of the Ninth Judicial Circuit, in and for Orange County, Florida on September 29, 2021.