Opinion
168756
10-10-2017
In the Matter of Sadia I., Petitioner, v. Waquas I., Respondent.
For the Mother, Eugene Francis Crowe, Esq. For the Paternal Grandparents, Amina Rashad, Esq.
For the Mother, Eugene Francis Crowe, Esq. For the Paternal Grandparents, Amina Rashad, Esq. John M. Hunt, J.
HUNT, J.:
PROCEDURAL HISTORY
The Mother, Sadia I. (hereinafter "Mother") and the Father, Waquas I. (hereinafter "Father"), are married and have four children in common, Zakiriya I., age 5, Leah I., age 3 Yousuf I., age 1, and Noah I., a newborn. The Mother filed for a writ of habeas corpus regarding the parties' children, Zaikiriya, Leah and Yousuf; she alleges that the Father kidnapped them, took them to Pakistan, and refuses to return them to her in America, where she resides. Another family court judge signed the writ and issued a warrant for the Father's arrest in Pakistan.
The Mother also filed petitions seeking a legal custody determination regarding the children, including Noah, an infant who lives in New York with the Mother and who was born after the Father was said to have left for Pakistan with the child's siblings. Additionally, there are various family offense petitions which were filed by the Mother against her sister-in-law, Nadia, her mother-in-law, Naveeda, and her father-in-law, Muhammad I.. Moreover, Naveeda I. filed a family offense petition against the Mother. Orders of protection were issued on all of the parties' family offense petitions.
On September 15, 2017, since a state family court warrant has no authority or applicability in foreign countries, this Court vacated the warrant for the Father's arrest in Pakistan. On September 28, 2017, the Court received into evidence several affidavits about the children's connections to both New York and Pakistan as well as a copy of court documents from Pakistan. In addition, the Court heard argument on the issue of jurisdiction. On that same date, based upon lack of jurisdiction, the Court dismissed the writ of habeas corpus and the custody petitions regarding Zaikiriya, Leah and Yousuf. All of the pending family offense petitions were withdrawn upon consent. After receiving an affidavit of service upon the Father in Pakistan, the Court joined issue on the parties' remaining custody matter involving their newborn who was born in America and has never left the jurisdiction since his birth. The matter was adjourned to December 6, 2017.
The Court herein memorializes its September 28, 2017 oral decision that was placed on the record. For the reasons set forth herein, the Court dismisses the writ of habeas corpus, and declines to exercise jurisdiction on th Mother's custody petitions regarding the children, Zaikiriya, Leah and Yousuf. Accordingly, the Court also dismisses those petitions. The Court exercises jurisdiction over newborn Noah's custody petition.
As an initial matter, the Mother and the Father are married, but neither possesses a legal document determining custody of the children, Zaikiriya, Leah and Yousuf. The Court, therefore, has no jurisdiction to issue a writ of habeas corpus with respect to those children. See NY Fam. Ct. Act § 651 (McKinney's 2017); see also NY Dom. Rel. L. § 70 (McKinney's 2017); Kiara B. V. Omar R., 147 AD3d 476, 476 (1st Dep't 2017) (no right to habeas corpus relief where no custody order in place).
Moreover, with regards to those three children, Pakistan is the children's "home state." See NY Dom. Rel. L. § 76(1)(a) (McKinney's 2017) (home state is where child lived for at least six consecutive months prior to filing of petition). Compare Intriago v. Diaz-Garcia, 147 AD3d 1054, 1055 (2d Dep't 2017) (finding family court erred in deciding New Jersey was child's "home state" since child did not live there for at least six consecutive months before commencement of proceeding). The Court accepted affidavits from the parties regarding the children's connections to New York and Pakistan. See NY Dom. Rel. L. §75-i (McKinney's 2017). Upon the Mother's admission, the children have not lived in New York on a continuous basis for more than several months at a time. See e.g. 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, not New York, 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 custody proceeding pending in Pakistan regarding those children. Copies of court documents with respect to those proceedings were provided to the Court. The Court is satisfied that Pakistan has jurisdiction over the children. Thus, this Court finds that New York has no authority to hear the custody matter with regards to Zaikiriya, Leah and Yousuf. Accordingly, the Mother's petitions seeking custody of those children are dismissed.
The Mother's affidavit sets forth periods that she traveled internationally with the children, which she referred to as "vacations." It is clear that during the children's short lives, she has spent more time in Pakistan with them than in New York. Additionally, the affidavit also establishes that the family took trips to Florida and Canada during the time period in question. The children have not resided in New York for more than 4 months at a time, at best. Hence, the children did not live in New York for the requisite 6 months prior to the filing of her petitions.
While not a Member State of the Hague Conference, Pakistan recently became a Contracting Party to two Hague Conventions: the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction entered into force for Pakistan and the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. See https://www.hcch.net/en/states/hcch-members; see also https://www.hcch.net/en/news-archive/details/?varevent=542. However, given the current global foreign affairs landscape, the United States's unsteady relationship with Pakistan, and the lack of sufficient contact information for the Pakistani court, the Court was unable to communicate with Pakistan. 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). --------
With regards to the parties' newborn, Noah, the Court exercises jurisdiction over the Mother's custody petition. The Mother has been living in New York, without interruption since April, 2017, while she was pregnant with Noah. Noah was born in New York on September 7, 2017 and has never left the state. See NY Dom. Rel. L. § 76(1)(a) (McKinney's 2017) (home state is where child lived for at least six consecutive months prior to filing of petition). An affidavit of service upon the Father in Pakistan was provided to the Court which establishes that the Father has notice of the New York proceeding. See NY Dom. Rel. L. § 75-g (McKinney's 2017) (notice to persons outside state under UCCJEA); see also NY Dom. Rel. L. § 76(1)(a) (McKinney's 2017) (international application of UCCJEA).
This constitutes the decision, opinion, and order of the Court. ENTER: /JM _____________________________________ JOHN M. HUNT, JUDGE FAMILY COURT - QUEENS COUNTY Dated: October 10, 2017 Jamaica, New York