Priscilla S. v. Albert B.

• Decision Date: 08 January 1980
• Citation: 102 Misc.2d 650,424 N.Y.S.2d 613
• Parties: . PRISCILLA S., Petitioner, v. ALBERT B., Respondent. Family Court, Schenectady County
• Court: New York Family Court

Page 613

424 N.Y.S.2d 613

102 Misc.2d 650

In the Matter of Article 6 of the Family Court Act a

Proceeding for Custody.

PRISCILLA S., Petitioner, v. ALBERT B., Respondent.

Family Court, Schenectady County.

Jan. 8, 1980.

James S. Martin, Legal Aid Society, Schenectady, for petitioner

Richard Wickerham, Schenectady, Law Guardian.

David A. Lorenson, Schenectady, for respondent.

DECISION

LEONARD J. LITZ, Judge.

In this custody proceeding initiated by petition dated August 23, 1979, the petitioner seeks custody of her second cousin by adoption from the respondent, the child's adoptive father. The pleadings were served on the respondent, a resident of Vermont, by mail, who thereafter appeared in this proceeding with counsel. In a proceeding initiated in Vermont subsequent to the commencement of this proceeding, respondent obtained an order of custody of the child from the Superior Court in Bennington, Vermont on September 5, 1979. This order was granted without a plenary hearing and without notice to this petitioner, the physical custodian of the child. Counsel for respondent thereafter moved to dismiss this petition on the grounds that the Vermont custody decree is entitled to recognition and enforcement and that this court lacks jurisdiction to make a custody determination under the provisions of the Uniform Child Custody Jurisdiction Act, Domestic Relations Law Article 5-A, sections 75-a Et seq., (hereinafter referred to as the UCCJA).

After a preliminary hearing, an oral decision was issued denying the motion. At that time three determinations were made: (1) that this court has jurisdiction under the UCCJA to decide custody of this child; (2) that this court is not bound to recognize and enforce the Vermont custody decree; but (3) that Vermont is the more convenient forum in which to litigate this custody dispute. These proceedings were therefore stayed pending the petitioner's prompt initiation of a proceeding in the appropriate Vermont court and temporary physical custody of the child was left Pendente lite, with the petitioner. See Kern v. Kern, 87 Cal.App.3d 860, 150 Cal.Rptr. 860, 5 Family Law Reporter 2170 (dec. Dec. 18, 1978). Subsequent unanticipated developments now require a modification of my previous decision.

An analysis of the facts surrounding this proceeding is crucial to a proper determination of the jurisdictional issues which have been raised. The child, now eleven, was adopted by respondent and the adoptive mother in Vermont in 1969. In 1970, the adoptive mother was awarded custody of the child pursuant to a Bennington, Vermont, County Court divorce decree, and she subsequently remarried and moved with the child to Troy, New York, where they resided until her death in 1974. At that time the child, apparently with the consent of the respondent, went to live with her adoptive maternal grandmother in Bennington, Vermont, where she resided until July of 1979, with weekend visitation at the home of the respondent during this period of time. During the summer of 1979, the custodial grandmother suffered illnesses which impaired her ability to care for the child and in July she allowed the child to return In making a ruling on the issues raised by the respondent, "the court must go through a multistep process in determining whether to exercise jurisdiction. First it must ascertain whether it has jurisdiction * * * If it finds that there is jurisdiction, then the court must determine whether there is a custody proceeding pending or a decree in another state. * * * Finally, assuming the court has jurisdiction and there is not a proceeding pending or a decree, the court then must determine * * * whether to exercise its jurisdiction because of convenient forum." Vanneck v. Vanneck, 68 A.D.2d 591, 597, 417 N.Y.S.2d 258, 262 and Carson v. Carson, 29 Or.App. 861, 865, 565 P.2d 763.

to Schenectady, New York, with the petitioner for a two-week visit. The child has continued to reside with the petitioner in Schenectady, New York, though there is sharp dispute regarding whether the petitioner's continued physical custody of the child is at the grandmother's request, or against her demands for the child's return.

JURISDICTION

Under traditional principles, the physical presence of the child within the state was sufficient to confer jurisdiction to make a custody determination consonant with the child's welfare. See Nehra v. Uhlar, 43 N.Y.2d 242, 248, 401 N.Y.S.2d 168, 171, 372 N.E.2d 4, 6. Under the UCCJA, however, the child's presence in the state alone is not enough (Section 75-d(2) of the Domestic Relations Law). Section 75-d, subd. 1 of the Domestic Relations Law sets forth four alternative bases on which a court of this state has subject matter jurisdiction in a custody dispute:

1. Court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree only when:

(a) this state (i) is the home state of the child at the time of commencement of the custody proceeding, or (ii) had been the child's home state within six months before commencement of such proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or

(b) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is within the jurisdiction of the court substantial evidence concerning the child's present or future care, protection, training, and personal relationships; or

(c) the child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child; or

(d)(i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (a), (b), or (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.

Based on the facts of this case, the jurisdictional prerequisites of subparagraphs (1)(a), (b) and (d) are clearly not satisfied: New York is not now, nor has it been within the last six months, the child's "home state"; the "child and at least one contestant" do not have a "significant connection" with this state, based solely on the child's residence here for a two-month period within the last five years, nor, for the same reason, is there more "substantial evidence" available in this jurisdiction than in Vermont. See William L. v. Michele P., 99 Misc.2d 346, 416 N.Y.S.2d 477; and Vermont, the home state, has not declined to exercise jurisdiction based on forum non conveniens grounds.

The sole basis of jurisdiction available in this proceeding therefore, is that found in section 75-d(1)(c), and the petitioner contends that a bona fide emergency The court is cognizant of the limited purpose of the emergency jurisdiction provision in the UCCJA in that "this extraordinary jurisdiction is reserved for extraordinary circumstances", (Commissioners' Note to the Uniform Act, 9 ULA (Master Ed.), p. 108), and that it must not be misused to defeat the purposes of the act, but that provision nevertheless retains and reaffirms this court's Parens patriae responsibility for children in need of immediate protection. Because of the seriousness of petitioner's allegations, supported by proof and uncontradicted by the respondent, and because of the question raised regarding the grandmother's ability to care for the child during the pendency of this proceeding, this court concludes that it has jurisdiction based upon the immediate threat to the child's physical and mental well-being and the child's physical presence in this state.

exists which requires this court to exercise jurisdiction in the interests of protecting the child. The petitioner has alleged that respondent is an alcoholic who has physically abused the child and who has on several occasions during recent visitation locked her out of the house late at night leaving her to wander the streets. Petitioner also contends that the child's grandmother has not recovered sufficiently from her recent illnesses to be able to resume caring for her. Recorded testimony was taken of the child in camera by the court without the presence of counsel under the authority of Lincoln v. Lincoln, 24 N.Y.2d 270, 299 N.Y.S.2d 842, 247 N.E.2d 659. That, coupled with other sworn testimony received at a hearing and the well-considered report and recommendation of the child's law guardian, convinces the court that immediate jeopardy to the child's physical and mental well-being vests this court with jurisdiction under section 75-d(1)(c). Furthermore, the respondent, though given the opportunity at the hearing, failed to come forward with any evidence to rebut or contradict petitioner's proof. In a civil proceeding the court is permitted to draw the most unfavorable inferences from the failure of a party to testify to matters within his knowledge. See 21 New York Jurisprudence § 125, p. 261; Dowling v. Hastings, 211 N.Y. 199, 105 N.E. 194; Semerad v. City of Schenectady, 27 A.D.2d 673, 276 N.Y.S.2d 357; Scivolette v. Leckie, 4 A.D.2d 773, 165 N.Y.S.2d 529; Fingerhut v. Kraylyn Enterprises, 71 Misc.2d 846, 337 N.Y.S.2d 394; and Matter of Estate of Weaver, 58 Misc.2d 901, 297 N.Y.S.2d 201.

RECOGNITION AND ENFORCEMENT OF THE VERMONT CUSTODY DECREE

Having ascertained that there is jurisdiction to entertain this custody petition, the court must next consider the effect of the Vermont custody decree made during the pendency of this proceeding. Before the enactment of the UCCJA it was the well-established rule...