William L. v. Michele P.

• Decision Date: 20 April 1979
• Parties: In the Matter of WILLIAM L., Petitioner, v. MICHELE P., Respondent. * Family Court, Schenectady County
• Court: New York Family Court

Page 477

416 N.Y.S.2d 477

99 Misc.2d 346

In the Matter of WILLIAM L., Petitioner, v. MICHELE P., Respondent. ^*

Family Court, Schenectady County.

April 20, 1979.

Lawrence M. Gordon, Schenectady, for petitioner

Paul K. Mulligan, Schenectady, for respondent.

Gary O'Connor, Scotia, law guardian.

DECISION

HOWARD A. LEVINE, Judge.

By petition and order to show cause, dated August 25, 1978, the father seeks custody of his two daughters, aged nine and seven. The mother was personally served with the pleadings in Oxford, Mississippi. Thereafter, she appeared in this proceeding, and, pursuant to her request and under the provisions of section 262, Family Court Act, counsel was assigned. She has now moved to dismiss this petition on the grounds that under the Uniform Child Custody Jurisdiction Act, Domestic Relations Law Article 5-A, sections 75-a Et seq., (hereinafter referred to as the U.C.C.J.A.) the Family Court of Schenectady County either lacks jurisdiction or should decline to exercise jurisdiction to determine the custody of the children.

Because of some of the factual inquiries required under various jurisdictional provisions of the U.C.C.J.A., by stipulation of the parties a social investigation of both parents was made by appropriate public welfare agencies in Schenectady and Oxford, Mississippi, and a psychological evaluation of the children was performed here by a clinical psychologist. The reports of the investigations and evaluation were made available to the attorneys for the parties, the law guardian and the Court.

Based upon the foregoing reports and the uncontested allegations of the pleadings, it appears the parties were married in 1966 and lived together with the children in Schenectady until they physically separated in 1973. They entered into a formal separation agreement in January, 1974, under which the mother was given custody. The agreement was incorporated but not merged in the divorce decree dissolving the marriage granted in Supreme Court, Schenectady County in March, 1974. The separation

agreement contained a provision under which the mother agreed not to remove the children from Schenectady without the consent of the father. The mother soon remarried a man who was then in the military service and in August, 1974, she sought and received permission to leave Schenectady with the children to accompany her husband to Texas where he was stationed. That marriage was dissolved in 1975 or 1976 and she then moved to the State of Florida. While there she met and married one James P. In January, 1977, she, James P. and the children moved to Mississippi, where he was attending college. The father resumed contact with the children in Florida in January, 1976, and had them with him for mutually agreed upon periods of visitation in Schenectady during the summers of 1976 and 1977. Serious marital difficulties arose between the mother and her husband in the Spring of 1978, leading to the initiation of a divorce action by her in May, 1978. Apparently in an effort to avoid exposure of the children to the domestic turmoil and particularly to alleged harassing conduct of James P. toward the mother, the parties agreed that the children would start their visitation earlier than usual, after the school year ended in Oxford in May. The father retained the children and then commenced this proceeding to change legal custody.

Jurisdiction

Under traditional principles applied in custody litigation in New York prior to the enactment of the U.C.C.J.A. in 1977, this court clearly would have jurisdiction, either because of the physical presence of the children here, or because a New York court had rendered the original determination in the divorce decree in 1974, and retains continuing modification jurisdiction under section 240 of the Domestic Relations Law. See Nehra v. Uhlar, 43 N.Y.2d 242, 401 N.Y.S.2d 168, 372 N.E.2d 4; Matter of Lang, 9 A.D.2d 401, 193 N.Y.S.2d 763; Anonymous v. Anonymous, 62 Misc.2d 758, 309 N.Y.S.2d 966. Under the U.C.C.J.A., (DRL sec. 75-d(2)) however, physical presence of the child is not alone sufficient to confer jurisdiction. Section 75-d(1) subparagraphs (a) through (d) set forth four specific alternative factual requisites for the exercise of jurisdiction:

1. A 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.

The pleadings and the agency reports establish that the children continuously resided in Mississippi from January, 1977 until May, 1978, when they were sent to Schenectady and thereafter retained by the father. The Mississippi welfare agency reported that the mother divorced James P. in August, 1978, and that even before that he Therefore, on the basis of the available factual information, the exercise of jurisdiction is not authorized under subparagraph 1(a) of section 75-d, since Mississippi, and not New York, is the home state; nor under subparagraph 1(c) since the children were not abandoned and there is no evidence that they need the immediate emergency protection of this court; nor under subparagraph 1(d), since it appears that Mississippi would have jurisdiction as the home state and has not declined to exercise such jurisdiction. Subparagraph 1(b) however, authorizes this court to exercise jurisdiction when "it is in the best interest of the child that a court of this state assume jurisdiction" because the child and at least one contestant have a "significant connection" here and there is "substantial evidence" here concerning the child's present or future care. Given the general purposes of the U.C.C.J.A., expressed in DRL section 75-b(1), as well as described in such recent interstate custody cases as Inn v. Inn, 93 Misc.2d 1110, 404 N.Y.S.2d 511; and Matter of Anonymous, 92 Misc.2d 280, 401 N.Y.S.2d 438, namely, to avoid successive and conflicting assumptions of custody jurisdiction by courts, based merely on physical presence of the child and purportedly required by his best interests, the phrase "best interest" in subparagraph 1(b) of section 75-d should not be applied independently and is insufficient as a jurisdictional basis absent proof of both the "significant connection" and "substantial evidence" requirements. This interpretation conforms to the Commissioner's Note to the corresponding section of the Uniform Act wherein, in referring to this subparagraph, it is stated that "its purpose is to limit jurisdiction rather than to proliferate it." (9 Uniform Laws Annotated (1973), at p. 108).

refrained from contact with her after she threatened to have him arrested, and indeed, at the time of the investigation his whereabouts were unknown. Local sources of information indicated to the investigator that apart from their exposure to the earlier marital conflict, the children functioned at least adequately while in the care of the mother and that the mother is presently employed and has adequate housing for the children if they were returned to her custody. The psychologist's report assessed the children as being normal intellectually and as suffering no severe emotional problems.

Subparagraph 1(b) is the least precise of the alternative jurisdictional bases contained in section 75-d. As pointed out in the Commissioner's Note to the Uniform Act (9 U.L.A. at p. 108), "the paragraph was phrased in general terms in order to be flexible enough to cover many fact situations too diverse to lend themselves to exact description." Since subparagraph 1(d) permits the court to accept jurisdiction in the best interests of the child when no other state has jurisdiction under the jurisdictional prerequisites of the act, subparagraph 1(b) presupposes that another state's court may also meet the act's jurisdictional requirements to hear the case. Moreover, the "significant connection" and "substantial evidence" language is to be contrasted with that of the act's Forum non conveniens provision (DRL sec. 75-h) which authorizes a court having jurisdiction to decline to exercise it based on various factors, including whether another state has a "closer connection" with the child and the contestants, and whether substantial evidence is "more readily available" concerning the child's present or future care.

From the foregoing, it may be inferred that subparagraph 1(b) of section 75-d permits the courts of this state to exercise jurisdiction over a custody dispute, even when another state's forum may also satisfy the requirements to determine custody, if there are sufficient legal and factual contacts with the child and his family to justify...