John B v. Talia K

• Citation: 74 Misc.3d 396,160 N.Y.S.3d 544
• Decision Date: 14 October 2021
• Docket Number: Index No. XXXXX
• Parties: In the Matter of a Proceeding Under Domestic Relations Law Article 5-A JOHN B, Barbara B, Petitioners, v. TALIA K, Corey K, Respondents.
• Court: New York County Court

74 Misc.3d 396
160 N.Y.S.3d 544

In the Matter of a Proceeding Under Domestic Relations Law Article 5-A JOHN B, Barbara B, Petitioners,
v.
TALIA K, Corey K, Respondents.

Index No. XXXXX

Family Court, New York, Monroe County.

Decided on October 14, 2021

160 N.Y.S.3d 545

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.

160 N.Y.S.3d 546

74 Misc.3d 397

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.

74 Misc.3d 398

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

160 N.Y.S.3d 547

Conference for September 29, 2021 pursuant to Domestic Relations Law § 75-i.¹ The Court also followed up with an email advising all counsel of the same.

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

74 Misc.3d 399

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.²

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

160 N.Y.S.3d 548

Carolina in January 2021, as planned, this custodial dispute arose.

74 Misc.3d 400

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...