Hricko v. Stewart
| Decision Date | 10 April 1979 |
| Citation | 415 N.Y.S.2d 747,99 Misc.2d 266 |
| Parties | . Marianne L. Hricko STEWART, Respondent. Family Court, Chemung County |
| Court | New York Family Court |
The court noting the order of February 27, 1979 notes that this matter comes on by petition pursuant to Section 466 of the Family Court Act, by the natural father of the two minor children named therein requesting an order awarding him custody of said children. The natural mother, the respondent, is unable to be present in court today due to the fact she is currently serving an indefinite sentence of one to ten years in prison in the State of California following a welfare fraud conviction in California Superior Court. Counsel for the respondent having been duly assigned pursuant to Section 262 of the Family Court Act, as implemented by Article 18-B of the County Law, now argues that this court does not have jurisdiction to entertain the father's petition.
The parties were divorced on February 25, 1977 by the Superior Court of California in Orange County. The divorce decree ordered that the custody of the two children of this union be awarded to the natural mother. Although this court notes that the children were absent from the State of California from July 19, 1976 to June 19, 1977, it is unable to find any infirmity in this aspect of the California decree. In so determining, the Court is assuming that sufficient evidence was presented at that hearing pertaining to the maintenance, care and education of these children so as to assure that the California Court considered the needs of the children, thereby reaching a decision that was properly in the best interests of the children at the time.
The father in his petition in New York, now alleges that since the time of this decree (February 25, 1977) until June 19, 1977, the children remained in New York State and were visited only once by the respondent, at which time she took the children with her to California. Petitioner further alleges that respondent kept the children until June 15, 1978, when she was sentenced following her conviction of welfare fraud against the State of California. The petitioner continues that on the advice of the District Attorney's office of Orange County, California, he took the children into his physical custody and brought them back to New York State. The petitioner-father now seeks a modification of the California decree in effect granting to him permanent legal custody of the children. While unable to personally appear in this matter as a result of her incarceration, the respondent is nevertheless duly represented by counsel and she has communicated to the court that she is unwilling to relinquish custody of the children to the petitioning father.
The procedure for the modification of out-of-state custody awards is now set out in Article 5-A of the Domestic Relations Law, referred to as the Uniform Child Custody Jurisdiction Act (UCCJA), which sets limits on a subscribing state's acceptance of jurisdiction in child custody cases. The concept delineated by the UCCJA is for the courts of the "home state" of the child to serve as the proper forum for determining custody issues initially, as well as for seeking modification of such awards, with other states channeling any relevant data they might possess to the "home state" court. The intent behind the creation of this statutory scheme was to encourage other states to cooperate but not compete with the "home state" in custodial matters. Furthermore, the UCCJA seeks to discourage the continued controversies and subsequent relitigation of custody decisions which are frequent occurrences in this troubled area of the law. (See DRL Sec. 75-b, par. 1(a), (d), (f); the Governor's Approvel Message of L.1977 c. 493; Memorandum of Office of Court Administration. L.1977 c. 493...
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