J.C. v. T.N.

• Decision Date: 18 January 2022
• Docket Number: V-XXXXX-21/XX
• Citation: 2022 NY Slip Op 50032 (U)
• Parties: J.C., Petitioner, v. T.N., Respondent.
• Court: New York Family Court

2022 NY Slip Op 50032(U)

J.C., Petitioner, v. T.N., Respondent.

Docket No. V-XXXXX-21/XX

Family Court, Westchester County

January 18, 2022

Unpublished Opinion

Rachel F. Ciccone, Esq. Counsel for the father, J.B. Kommer Bave & Ciccone LLP Suzanne Kimberly Bracker, Esq. Counsel for the mother, T.N.

Christina T. Hall, Esq. Attorney for the child, G.B. Law Office of Christina T. Hall and Associates PLLC

Arlene E. Katz, J.

The above parties are the parents of G.B., born [Redacted], 2012. Despite this and related matters having been pending for less than a year, there is a great deal of procedural history and nuance. Only that which is directly relevant to the within determination will be referenced. On February 8, 2021, the father, J.C., filed a petition seeking custody of G.B. On March 3, 2021, the mother, T.N., filed a writ of habeas corpus. This application was denied. On March 10, 2021, the father filed a family offense petition against the mother. The father's custody and family offense petitions are currently pending before this Court.

On or about February 15, 2021 the mother filed an order to show cause in Bronx County Supreme Court seeking, inter alia, an order of sole custody of the parties' child G.B., under Index No. XXXXX. It is this Court's understanding that the mother also sought reappointment of Dr. [Redacted] to conduct a new forensic evaluation as well as the appointment of a lawyer to represent G.B.

The father, by his attorney, filed a cross-motion seeking dismissal of the mother's application, or in the alternative, transferring the matter to Westchester County Supreme Court or remanding the proceedings to Westchester County Family Court for an ultimate determination on the merits. The father also sought an award of sanctions and costs based upon the mother's frivolous conduct.

The matters pending in Bronx County were transferred to Westchester County Family Court by order of the Honorable Patsy Gouldborne. In her Decision and Order dated July 8 2021, Justice Goldborne states:

"This Court finds that New Rochelle Family Court has concurrent jurisdiction over the instant custody dispute, as the Respondent is a resident of Westchester County specifically the City of New Rochelle, and the subject child has resided with Respondent in New Rochelle, New York.

In light of the conflicting affidavits of the Petitioner and Respondent, a hearing is necessary to determine the home state and custody of the subject child. This Court made several attempts to reconfigure its calendar in order to proceed with the hearing in this matter, however, the respective requests for adjournments made by both parties resulted in the dissipation of judicial resources and prevented this matter from proceeding to a hearing. Accordingly, Petitioner's application for custody, and Respondent's cross motion for dismissal, along with the supporting papers are appropriately transferred or referred to New Rochelle Family Court, as custody proceedings have commenced in the Family Court, the parties have appeared and engaged in litigating this matter in New Rochelle Family Court."

The father's application for sanctions and costs was denied.

Subsequent to counsel making this Court aware of Justice Gouldborne's Decision and Order, this Court made repeated requests for counsel to take the necessary steps to have the documents in the Bronx County Supreme Court matter made available to New Rochelle Family Court. To date, this Court has not received any documents other than those included with submissions filed in New Rochelle Family Court in connection with the dockets initiated and currently pending before the Undersigned. Until such time as this Court is assured that it has received the full official file from Bronx County Supreme Court, it cannot properly make a determination on the above-referenced petition and motion to dismiss.

On October 29, 2021, the father filed an order to show cause for summary judgment. By this application, the father seeks an order: (1) granting summary judgment pursuant to CPLR 3212 on the issue of physical and legal custody of [the subject child] as there are no triable issues of fact; (2) granting summary judgment pursuant to CPLR 3212 and DRL § 75-a (7) designating New York as the child's home state as a matter of law; (3) finding that the subject child has resided in New Rochelle, New York since June 2020 and his best interests are served by continuous residence [there]; and (4) for such other and further relief as this Court may deem just and proper.

Despite not having received the official file transfer from Bronx County Supreme Court, the father included with his instant order to show cause the mother's verified petition and sworn affidavit submitted with her order to show cause filed in Bronx County Supreme Court on or around February 15, 2021. Some of the sworn statements contained therein are relevant to this Court's determination on the father's order to show cause.

In paragraph three of her petition, the mother stated, "For over the past six months the subject child of these proceedings, G.B., has been a resident of the State of New York and has with the knowledge and consent of the parties resided with his maternal grandmother [Redacted], his maternal grandfather [Redacted], and his two infant uncles [Redacted], aged fifteen, and [Redacted], aged ten, at [Redacted], Bronx, New York [Redacted]. New York State is the subject child's 'home state' pursuant to the Uniform Child Custody Jurisdictional Act (Section 75 of the Domestic Relations Law)".

In paragraph five of her petition, the mother states that the parties were married in 2011 in Bronx County in New York State "and were divorced in the Supreme Court of the State of New York in Putnam County pursuant to a judgment of divorce signed by the Hon. James F. Reitz, Justice, on March 3, 2017, in an action entitled [as redacted: Wife v Husband] under index number XXXXX" with a copy of the judgment annexed to the petition. This Court notes that the mother was the petitioner in that action and determined at that time to commence a matrimonial action in Putnam County, New York. Whether or not the ultimate judgment of divorce set forth a custody and visitation schedule, jurisdiction over custody of the subject child was conferred upon that court by the mother's commencement of that matrimonial proceeding. In addition, a review of the statewide file in this matter reflects that the father filed a petition for custody in Putnam County Family Court prior to the mother commencing the matrimonial action. During the course of that custody proceeding, a forensic evaluation was ordered in which both parties participated. Based upon this information, Putnam County had jurisdiction over the subject child.

In paragraph seven of her petition, the mother lists the subject child's prior addresses and duration of such residencies. She indicates that from January 2014 through June 2020, the child lived at various addresses in Florida. The mother also indicates...