K.S. v. E.A.

• Citation: 2022 NY Slip Op 51065 (U)
• Decision Date: 31 October 2022
• Docket Number: Docket Nos. V-00566-22/22A,V-00566-22/22B
• Parties: In the Matter of a Custody and Visitation Proceeding Under Article 6 of the Family Court Act, K.S., Petitioner/Respondent, v. E.A., Respondent/Petitioner.
• Court: New York Family Court

2022 NY Slip Op 51065(U)

In the Matter of a Custody and Visitation Proceeding Under Article 6 of the Family Court Act, K.S., Petitioner/Respondent,
v.
E.A., Respondent/Petitioner.

Docket Nos. V-00566-22/22A, V-00566-22/22B

Family Court, New York County

October 31, 2022

Unpublished Opinion

Sarah Smith, Esq. for Petitioner.

Jessica Evelyn Stoker, Esq. for Respondent.

Erin Giangola, Esq. - Attorney for the Child.

Hasa A. Kingo, J.

Hon. Hasa A. Kingo, J.F.C.

The following papers numbered 1 to 22 were read on this motion to suspend visitation:

Papers: No(s). Exhibits

Amended Notice of Motion 1

Affirmation of Jessica Evelyn Stoker, Esq. in Support 2-5 A-D

Affidavit of Respondent E.A. in Support 6

Affidavit of Petitioner K. S. in Opposition 7-13 A-E

Affirmation of Sarah Smith, Esq. in Opposition 14-18 A-D

Affirmation of Attorney for the Child Erin Giangola, Esq. in Opposition 19

Affirmation of Jessica Evelyn Stoker, Esq. in Reply 20

Affidavit of Respondent E.A. in Reply 21-22 E

In this custody and visitation proceeding brought under Article 6 of the Family Court Act, respondent E. A. ("Respondent") moves pursuant to CPLR § 510 to change the venue of this action from this court to Suffolk County Supreme Court, for an order directing the Clerk of the Court to transfer the file accordingly, and for such other and further relief as the court may deem just and proper. Petitioner K. S. ("Petitioner") and the Attorney for the Child ("AFC") oppose the motion. After review of the motion papers and exhibits cited above, procedural history, and court-maintained audio recordings of the proceedings, the motion is granted.

Background

Petitioner and Respondent are the parents of one child, born June 7, 2012 (the "child"). Pursuant to a Judgement of Divorce entered in Suffolk County Supreme Court (Index no. 7301/2014) on December 15, 2016 (the "Custody Order"), Petitioner has residential custody of the child and the parties share joint legal custody. On January 25, 2022, Petitioner filed a petition in this court to modify the Custody Order (Docket No. V-00566-22/22A). In the petition, Petitioner seeks an award of sole legal custody and the right to relocate with the child to Thailand, where Petitioner's husband works six months per year. Petitioner alleges, inter alia, that there has been a significant change in circumstances because Respondent failed to abide by the terms of the Custody Agreement by refusing to participate in the child's educational and medical care and refuses to cooperate in obtaining a passport for the child. With leave of the court, Petitioner filed an amended petition on October 13, 2022 wherein she lists a new home address located in North Carolina and seeks leave to relocate with the child to North Carolina rather than Thailand.

The first appearance was held in this court before the undersigned on April 28, 2022. Petitioner and counsel for both parties attended and the attorney for the child was appointed on the record. During the appearance, counsel to Respondent made an oral application to dismiss the petition or change the venue to Suffolk County Supreme Court. Brief oral arguments were heard and the court directed Respondent's counsel to file a written motion for the requested relief. At this appearance, the court also issued an order for the Administration for Children's Services ("ACS") to conduct a court ordered investigation and the case was referred to the court's mediation program. Thereafter, the parties participated in mediation, which ended without an agreement.

The court attorney to the undersigned held conferences with the parties and their counsel on June 9, 2022, August 15, 2022, and October 14, 2022. At the June 9, 2022 conference, the court attorney advised counsel to Petitioner that any motion to change venue should be filed expeditiously and by order to show cause. On August 12, 2022, Respondent also filed a petition to modify the Custody Order in New York County (Docket No. V-00566-22/22B). At the August 15, 2022 conference, the motion to dismiss was marked returnable on October 14, 2022 and the hearing dates were scheduled for December 5, 2022 and December 6, 2022. The instant motion was filed on August 17, 2022, amended on August 31, 2022, and marked fully submitted on October 14, 2022, following a conference with the court attorney.

On March 22, 2022, during the pendency of this proceeding, Respondent filed a motion, brought by order to show cause, in the Suffolk County Supreme Court action to modify the Custody Order by granting sole legal and residential custody of the child to Respondent. The motion also sought leave to enroll the child in school on Long Island pending a hearing on the issue, an order restraining Petitioner from relocating her and the child's primary residence from a distance of greater than ten miles from Sayville, New York, and an order restraining and enjoining Petitioner from traveling outside of or leaving New York with the child pending a hearing (Stoker affidavit, Exhibit A). The order to show cause was signed on March 21, 2022 and granted the interim relief of restraining and enjoining Petitioner from traveling outside or leaving New York with the child pending a hearing. On April 8, 2022, Petitioner filed a motion to dismiss the Suffolk County action.

On June 13, 2022, the Suffolk County Supreme Court entered a decision on both motions pending before that court. The court's decision notes the following regarding jurisdiction:

Although the Plaintiff mother claims that this Court does not have jurisdiction to hear this matter, that assertion is clearly not true. In that that Court is the jurisdiction where the parties' judgment of divorce was granted, this Court would have jurisdiction over any modification. See Fallis v. Fallis 54 A.D.2d 683 1976. In view of the fact that the judgment of divorce was obtained in the Supreme Court, New York County, and that this is an application to modify that judgment..the application should be addressed to the court which made the original judgment and not to the Supreme Court in another county.

(Stoker affirmation, Exhibits C). The order further directs, in relevant part, "[b]ased upon the conflicting...