Nehra v. Uhlar
| Citation | 372 N.E.2d 4,401 N.Y.S.2d 168,43 N.Y.2d 242 |
| Parties | , 372 N.E.2d 4 In the Matter of Susanne NEHRA, Appellant, v. Rudolf UHLAR, Respondent. |
| Decision Date | 15 December 1977 |
| Court | New York Court of Appeals |
Petitioner Nehra, the mother, seeks custody of her two children, now aged 11 and 9. Respondent Uhlar, the father, opposes the petition, relying in part on a prior Michigan judgment granting him a divorce and awarding him custody of the children. Family Court granted the petition, but a divided Appellate Division, 57 A.D.2d 653, 393 N.Y.S.2d 472, reversed and awarded custody to the father. The mother appeals.
There is litigation over the custody of the hapless children because their mother on a visit in Michigan abducted the children and succeeded in hiding them with her for more than nine months in New York State. She and the children and her new husband now live in New Jersey. The father still resides in Michigan. A separate litigation was brought in New Jersey while the New York proceeding was pending. The New Jersey court has deferred to the courts of this State.
It is undisputed that the best interest of the children must govern in the adjudication of custody. Certainly on no view may their interests be ignored. The issue that remains is whether those interests require that the children be left with their mother, who has apparently provided them with a good enough home for over four and a half years, despite the Michigan judgment giving custody to the father, and even though the mother obtained possession of the children by abduction and for more than nine months prevented the father from finding or seeing the children.
The order of the Appellate Division should be affirmed.
Although returning the children to their father will provide yet another disruption in the young lives of these unfortunate children, the evidence indicates, and the trial court found, that he can also provide, as he had before, a good enough home for them. And, in the long run, refusal to condone abduction of children will provide better stability for the Uhlar children, who would otherwise remain subject to the exercise of lawless self-help by either of their embattled parents.
The parties, then both residents of Michigan, were married in 1964. They both hold advanced graduate university degrees. They had two children, Sandrae, born in 1966, and Marke, born in 1968, before their separation in 1970. The mother brought a divorce action in Michigan in January, 1970, and retained custody of the children in the marital home while the divorce action was pending. On March 3, 1972, after trial in the action for divorce, the father was awarded custody, because of the mother's misconduct and unfitness in the care of the children. The mother was granted visitation rights. The father was given possession of the marital home. Nine months later, on December 26, 1972, the father remarried. The new Mrs. Uhlar, and her young daughter by her former marriage, moved into the Uhlar home. On February 12, 1973, in Connecticut, the mother, too, was remarried, to Gerald Nehra, whose former marriage had also ended in divorce.
In the application for the marriage license the mother gave her occupation as that of attorney and stated that she had never been married. Five days after her remarriage, during a Michigan visitation period, the mother absconded with the children and returned to her new home in New York. Efforts were made to conceal the whereabouts of the children, including listing the Nehra telephone number under an alias. Despi an extensive search, not until December 5, 1973, more than nine months later, did the father locate his children. Even then, he was denied the opportunity to see them, and, on one occasion, even the chance to talk with them on the telephone at Christmas time.
For a year after the father discovered his children, he was not permitted by the mother to have them visit him in Michigan. And, even when the father came to visit the children in New York, which he did eight times in the first year after their discovery, he was only permitted to see them in the presence of their mother or her second husband. The children's paternal grandfather, the father's second wife, and his stepdaughter, were denied access to the children altogether. When the father was finally permitted, in December, 1974, to take the children to Michigan for a visit, he was required under New York court order to post $2,500 bond. Each subsequent visit with the father in Michigan has also required posting of a bond.
The mother brought this proceeding in Family Court to obtain legal custody on December 13, 1973, just eight days after the father discovered the children (Family Ct. Act, § 651). On February 26, 1975, after a hearing, the mother was granted custody. On April 14, 1977, the Appellate Division reversed and awarded custody to the father.
The litigation has dragged on for over four years. The New York courts like so many "disinterested" Solomons must disentangle the web wrought by the mother, previously characterized by the Michigan court as selfish. Paradoxically, the mother who had defied the Michigan court brought both the divorce action in Michigan and the custody proceeding in New York.
While these proceedings were pending the Nehras moved to New Jersey, taking the Uhlar children with them. The removal was caused by the transfer in position of Mr. Nehra from New York State to New Jersey. A proceeding to validate the mother's custody of the Uhlar children was started in New Jersey, but, as the briefs advise, the New Jersey court suspended proceedings and stated that it deferred to what the New York courts might hold in the present prior proceeding (compare Domestic Relations Law, § 75-g, eff. Sept. 1, 1978). Consequently, there follows the paradox of Michigan children, now in New Jersey, having their care and custody determined in New York State where now neither of their parents nor they are situated, and where the outstanding custody judgment is that of Michigan where they have not resided for almost five years.
The New York courts having proper jurisdiction by the presence of the children in the State when the custody proceeding was begun, its jurisdiction continues . No useful purpose on behalf of the children would be served by abstaining from exercise of jurisdiction and thereby projecting another round of protracted and protracting litigation.
It appears from the record that either parent would provide the children with a materially comfortable and loving home. Currently, in the mother's custody, the children seem to be well adapted and are doing well in school. They get along with their stepfather, Mr. Nehra, whose own children by his prior marriage live with their mother in Michigan. Testimony of a psychologist retained by the mother indicated that there was no reason to disrupt the children, and that a change would be "potentially" damaging.
At the same time, testimony of neighbors of the Uhlars in Michigan indicates that the children appeared quite happy before they were abducted. Although the mother contends the children were ill-clothed and poorly cared for while in their father's custody, those allegations are controverted by testimony from the neighbors. In fact, their testimony indicates that the children may not have been properly treated while the mother had custody pending conclusion of the Michigan divorce proceedings. Moreover, the father and his second wife appear to be providing a good home for the new Mrs. Uhlar's daughter, and for two children born since the father's remarriage.
Paramount in child custody cases, of course, is the ultimate best interest of the child (Domestic Relations Law, § 70). That a change in custody may prove temporarily disruptive to the children is not determinative, for all changes in custody are disruptive. Given Mrs. Nehra's hostility to her ex-husband, and her reluctance to allow even visitation with the father, it would be surprising indeed if the children were eager after their enforced separation from him to return to their father. The desires of young children, capable of distortive manipulation by a bitter, or perhaps even well-meaning, parent, do not always reflect the long-term best interest of the children (see Dintruff v. McGreevy, 34 N.Y.2d 887, 888, 359 N.Y.S.2d 281, 282, 316 N.E.2d 716, 717; Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 273, 299 N.Y.S.2d 842, 844, 247 N.E.2d 659, 661).
As the court noted in the Dintruff case, "(t)here are periodic reorientations toward one or another parent, and this is...
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