Mohammed N. v. Nusrat N.

• Decision Date: 22 February 2022
• Docket Number: 39222
• Parties: Mohammed N., Petitioner, v. Nusrat N., Respondent.
• Court: New York Family Court

2022 NY Slip Op 22336

Mohammed N., Petitioner,
v.
Nusrat N., Respondent.

No. 39222

Family Court, Rockland County

February 22, 2022

RACHEL TANGUAY, J.

On December 29, 2021, Petitioner ("Father") filed an emergency Order to Show Cause with this Court seeking inter alia: (1) to register an Order relating to custody of his child issues by a Court in Bangladesh with this Court pursuant to D.R.L. § 77-g; (2) to require Respondent ("Mother") to appear before this Court with the subject child; (3) to hold the Mother in contempt for failing to following the Order from Bangladesh, including enforcing the terms of that Order. The Court signed the OTSC and directed personal service of the application upon the Mother.

Both parties appeared before this Court on January 4, 2022 in connection with these matters, in that the Mother's attorney appeared and requested that the Mother's appearance be waived for that particular date. Mother's counsel indicated that he intended to file his own application for custody and for an order of protection. The Court set a motion schedule for submission of opposing and reply papers, and recognizing that there would likely be a need for a factual evidentiary hearing, it scheduled such hearing for February 18, 2022. The Court received additional submissions from both parties as well as the Attorney for the Child ("AFC"), and with the lengthy nature of the submissions and variety of legal arguments proffered, it became evident to the Court that there was need to focus all parties on the distinct legal issues before the Court so that an evidentiary hearing would be narrowly tailored to address the contested issues of fact relating to the jurisdictional issues only. To that end, the Court convened an off-the-record attorneys only conference on February 15, 2022 to discuss the Court's view of the legal issues presented in this case: that the Court would first need to resolve the threshold legal question of whether the Order from Bangladesh constituted an "Initial Custody Determination" within the meaning of D.R.L. § 75. If the Court answered that question in the affirmative, the Court would have to determine what, if any, factual issues required a hearing so that the Court could properly address the Mother's objections to the registration of that Order with this Court, as well as the Mother's claims that even if Bangladesh had jurisdiction, that New York should exercise emergency temporary jurisdiction amidst allegations of domestic violence at the hands of the Father. If the Court answered that initial question in the negative, then it would have to determine what, if any, factual issues required a hearing so that the Court could determine legally whether New York should be the home state for purposes of an initial custody determination.

On January 11, 2022 Mother filed a Notice of Cross-Motion seeking: (1) dismissal of the Father's application; (2) a declaration by this Court that New York is the home state for purposes of issuing an Initial Child Custody Determination; and (3) custody of the parties' minor child. Mother also filed a Family Offense Petition, which was heard by the Court Attorney Referee. He issued a temporary order of protection on behalf of the Mother and child directing the Father to stay away from them, their home, to refrain from communication with both of them, as well as protective paragraph.

The Court converted the February 18, 2022 appearance from a hearing date to a conference date for purposes of the parties offering oral argument on the specific legal issues presented as noted above. Specifically, the Court asked the parties to focus on the threshold question of whether the Order from Bangladesh was an "Initial Custody Determination", and then to offer arguments supporting their client's positions depending on whether the Court answered that question in the affirmative or negative. Plus, the Court asked both parties to offer brief argument about the alleged time line of how the parties came to the United States and what happened once they got here, with it being uncontroverted that the Father returned to Bangladesh without the Mother and the minor child.

On February 18, 2022, the Court heard more than one and a half hours of oral argument on these issues. Counsel were all extremely well-prepared, for which the Court is grateful. They offered several statutory and case law citations for their positions and each made impassioned and cogent arguments for their clients. We all agreed that there was no case law on point for the issues presented in this case, particularly whether the unique language of the Order of Bangladesh is in fact an "initial custody determination". Thus, the Court listened carefully to the arguments of counsel, had done its own preliminary research prior to February 18th, and then followed up on Counsel's research in making some preliminary determinations in this case.

Domestic Relations Law § 75-a(3), in relevant part, states: "Child custody determination means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order" (Ellipses and...