Mancusi v. Mancusi

• Decision Date: 19 August 1987
• Parties: Michael MANCUSI, Petitioner, v. Elizabeth MANCUSI, Respondent.
• Court: New York Family Court

Page 476

519 N.Y.S.2d 476

136 Misc.2d 898

Michael MANCUSI, Petitioner, v. Elizabeth MANCUSI, Respondent.

Family Court, Westchester County.

Aug. 19, 1987.

Jeffrey Blackman, Jacoby & Meyers, Tucson, Ariz., John Voelp, Peekskill, N.Y., for Michael Mancusi.

Vincent De Marte, Law Guardian, Yorktown Heights, N.Y.

Carol V. Cromwell, Tucson, Ariz., for Elizabeth Mancusi.

ORAZIO R. BELLANTONI, Judge.

The paramount issue before this Court is whether New York or Arizona is the more appropriate forum to litigate the custody issues involving Elizabeth (6 years old) and Michael A. Mancusi, Jr. (4 years old) (see Domestic Relations Law [hereinafter "D.R.L."] § 75-g:, Arizona Revised Statute hereinafter [A.R.S.] § 8-406; 28 U.S.C. § 1738A).

PROCEDURAL BACKGROUND

This matter initially came before the New York Family Court on April 10, 1987, (see this Court's Decision and Order dated May 14, 1987 [Bellantoni, J.] ) after Michael Mancusi, Sr. (hereinafter "petitioner") filed a petition for a Writ of Habeas Corpus, dated March 30, 1987, alleging that his son, Michael, was being illegally detained by Elizabeth Mancusi, petitioner's wife (hereinafter "respondent"). In Court, at the initial appearance, petitioner further alleged that respondent had taken his son and was living as a transient in a storage trailer. He contended that the child's mental and physical well-being were in imminent danger. Respondent was served with a copy of the Writ, but chose not to appear or answer the allegations of the petition for the Writ. Accordingly, the Court, after considering the paramount issue of the child's immediate safety, awarded petitioner temporary custody of his son, Michael.

Additionally, petitioner filed a custody petition, dated March 30, 1987, requesting that this Court award him custody of Michael and Elizabeth Mancusi. Respondent was served with the summons and petition and again failed to appear or answer the petition. The court, on April 23, 1987, awarded temporary custody of Elizabeth to petitioner.

Subsequently, respondent filed a petition for a temporary restraining order in the Arizona Superior Court, Pima County. A hearing on the T.R.O. was scheduled for April 27, 1987. It is assumed that respondent sought to enjoin the New York State Family Court from determining the custody issue. However, this Court has not received a copy of these papers.

Thereafter, this Court, during the course of its proceedings, was informed that respondent had initiated, in Arizona, a proceeding for the custody of the children. Pursuant to D.R.L. § 75-g(3), this Court communicated with the Arizona Court (J. Houghton) to discuss the more appropriate forum to litigate these issues. Simultaneously, the Court in Arizona stayed all custody proceedings pending before it involving these parties (see A.R.S. 8-406). The Court in Arizona, after discussion with this Court, issued an order scheduling and setting forth the issues to be discussed at a conference to determine the more appropriate forum to decide the custody issues presently before both Courts.

Pursuant to the Arizona order, a telephonic conference was held on May 6, 1987, between the Judges, the Arizona attorneys for the parties and petitioner's New York attorney. Unfortunately, the attorney appointed by this Court to represent the children in the New York proceedings arrived late and was unable to fully participate.

As a result of the conference, it was determined and agreed between the parties that the more appropriate forum to litigate the custody issues surrounding Michael was Arizona. (Subsequently, petitioner withdrew his consent on this issue, however, that does not affect this Court's decision for the reasons set forth below.) This Court reserved decision on the more appropriate forum for Elizabeth.

Thereafter, petitioner's New York attorney requested time to prepare a memorandum of law in support of his position. Because of the interaction between the state statutes and the federal law (see 28 U.S.C. § 1738A) with respect to enforcement, according full faith and credit to a custody order of another state, and the possible preemption of state statute by federal law, this Court determined that it was in the best interests of all parties and the children to permit them to submit memoranda of law in support of their respective arguments.

A schedule for submission of papers was established. This Court received memoranda of law from petitioner and respondent.

FACTUAL BACKGROUND

During the conference held on May 6, 1987 the parties agreed to certain facts. Additionally, after a careful reading of the submitted papers, certain uncontroverted facts have come to light.

The parties were married in New York State on June 20, 1979. A daughter, Elizabeth, was born in this State on September 5, 1980. Michael, the parties' son, was born in New York on February 5, 1983.

The parties, together with their children, resided in New York State until sometime in 1985. During 1985, the family moved to Arizona. They lived in Arizona as a family until sometime in March of 1987.

At that time, petitioner along with his daughter Elizabeth left Arizona and returned to New York to live with petitioner's parents (the child's paternal grandparents). The parties disagree about whom (petitioner or respondent) left the marital residence first. Petitioner claims that he left Arizona after respondent abandoned him and absconded with Michael. Contrarily, respondent alleges that petitioner left respondent and unilaterally removed Elizabeth from Arizona without her permission.

Presently, petitioner resides with his parents and daughter in this State and is employed by a plumbing supply business. Elizabeth is enrolled in kindergarten and, by all accounts, enjoys a warm relationship with her grandparents.

LAW

To resolve the jurisdictional issue in this interstate custody dispute this Court must analyze the interaction between applicable State and Federal laws (D.R.L. § 75-a et seq.; A.R.S. § 8-401 et seq.; 28 U.S.C. § 1738A; see Ferguson v. Ferguson 130 Misc.2d 709, 714-15, 497 N.Y.S.2d 225 [Fam.Ct. Rockland County 1985] ). To the extent that the requirements of the Federal Parental Kidnapping Prevention Act of 1980 (28 U.S.C. § 1738A; hereinafter "PKPA") and the New York Uniform Child Custody Jurisdiction Act (D.R.L. § 75-a et seq.; hereinafter "New York UCCJA") as well as the Arizona Uniform Child Custody Jurisdiction Act (A.R.S. § 8-401 et seq.; hereinafter "Arizona UCCJA") do not directly conflict or the application of the New York and Arizona UCCJAs would not be inconsistent with the PKPA, the statutes are complementary. However, in cases of conflict or inconsistency, under the supremacy clause of the United States Constitution, the PKPA preempts the UCCJA of the respective States. (Enslein v. Enslein, 112 A.D.2d 973, 975, 492 N.Y.S.2d 785 [2nd Dept.1985]; In the Matter of Mark L. v. Jennifer S., 133 Misc.2d 454, 458, 506 N.Y.S.2d 1020 [Fam.Ct. Schoharie County 1986]; In the Matter of Sherry Ann F. v. Bennett S., 131 Misc.2d 854, 856, 502 N.Y.S.2d 383 [Fam.Ct. Schoharie 1986]; Ferguson v. Ferguson, supra 130 Misc.2d at 715, 497 N.Y.S.2d 225; In the Matter of Diane W. v. Norman W., 112 Misc.2d 114, 115, 446 N.Y.S.2d 174 [Fam.Ct. Kings County 1982] ). The PKPA must be accorded priority (In the Matter of Diane W. v. Norman W., Id.)

The UCCJAs of the respective states establish procedures to obtain subject matter and personal jurisdiction over contestants to an initial proceeding in an interstate custody dispute (Mayoff v. Robin, 115 A.D.2d 524, 526, 496 N.Y.S.2d 54 [2nd Dept.1985] ). The PKPA jurisdictional standards do not govern jurisdiction to render an initial custody decree in state courts. However, for a state's initial custody decree to be entitled under federal law to enforcement and nonmodification in another state, that state court must have exercised jurisdiction consistent with the PKPA (28 U.S.C. § 1738A[a] ).

Unlike the UCCJA which accords equal weight to its several jurisdiction bases (see D.R.L. 75-d, par. 1, subdivisions a-d; A.R.S. § 8-403), the PKPA gives a distinct priority to the state court which exercises jurisdiction under the "home state" basis (see D.R.L. § 75-d[1][a]; A.R.S. § 8-403 [A][1] ) over a state court exercising jurisdiction based on the parties or children having a "significant connection" (see D.R.L. 75-d[1][b]; ARS 8-403[A][2] ) with the state in interstate custody proceedings (see 28 U.S.C. § 1738A[c][2] ). It seems that this federal legislative construction is intended to encourage states exercising "significant connection" jurisdiction to defer to states exercising "home state" jurisdiction if jurisdiction exists concurrently in simultaneously occurring custody proceedings in two different states.

Manifestly, unless a state has continuing jurisdiction under the terms of the federal law (28 U.S.C. § 1738A[c][2][E]; [d] ), the PKPA makes it judicially imprudent for one state court to exercise jurisdiction when another state court fulfills the requirements and wishes to exercise "home state" jurisdiction (see Enslein v. Enslein, supra 112 A.D.2d at 975, 492 N.Y.S.2d 785). If conflicting custody decrees were issued, only the custody decree of the "home state" court would be entitled to full faith and credit under federal law.

Additionally, because of the priority afforded to "home state" jurisdiction under the PKPA, a state court exercising jurisdiction under the "home state" basis would not be prohibited from exercising its jurisdiction even though a custody proceeding involving the same parties and children was already pending in another state court which was exercising jurisdiction under the "significant connection" basis (28 U.S.C. § 1738A[g] ). In contrast, under the UCCJA, a state court is forbidden from exercising jurisdiction on any basis, if, at the time of filing the petition, a proceeding concerning the custody of the child was pending in a court...