UCCJEA - Mother and Child's Overseas Move Did Not Divest Court of Jurisdiction
New York has continuing jurisdiction over a custody dispute involving a child who, at the time his father retained him following visitation, had lived in Norway with the custodial mother for two years, the New York Supreme Court, Kings County, has decided in EB v. EFB, N.Y. Sup. Ct., No. 9159/02, 1/4/05.
Addressing for the first time application of the Uniform Child Custody Jurisdiction Enforcement Act in a case where the underlying custody order was issued prior to the Act's effective date and the modification request was made after such date, the court rebuffed the mother's contention that Norway has home state jurisdiction under the Act's predecessor, the UCCJA. It said that because the father remained in New York following the parties' divorce and issuance of the custody order, the state retained jurisdiction
The parties married in Brooklyn in 1996. The child was born in the mother's native Norway in 1997 after she returned there to avail herself of health insurance coverage and to be near her family. She and the child returned to Brooklyn after the birth. The father filed for divorce in 2002 and the parties entered a written agreement under which the mother and child would reside in Norway through the summer of 2004 so that she could further her education. It was also agreed that the child and father would have visitation during this time. The parties' April 24, 2002 divorce judgment provided that "the Family Court shall have concurrent jurisdiction with respect to any future issues of maintenance, support, custody and visitation."
In June 2004, the mother advised the father that she was engaged to a local man and wanted the father to permit the child to reside permanently in Norway. She agreed to allow the child to visit the father in Brooklyn at the end of summer. The father refused to return the child to the mother following that visit and commenced the instant proceeding, seeking modification of the divorce judgment so as to grant him full legal and residential custody. The mother countered that the New York court lacked jurisdiction because the father had abducted the child and that the boy's home state was Norway.
UCCJA or UCCJEA?
Rejecting the mother's arguments, Justice Jeffrey S. Sunshine noted that the case appeared to present an issue of first impression as to continuing jurisdiction under the Uniform Child Custody and Jurisdiction Enforcement Act in a postjudgment matrimonial case. After finding that few cases had addressed application of the UCCJEA, which replaced New York's Uniform Child Custody Jurisdiction Act in April 2002, Sunshine turned to the underlying legislative intent.
Recognizing that the parties divorced four days before the UCCJEA went into effect, Sunshine stressed that the father's application to change the decree's custody provision was brought in 2004, "long after the [UCCJEA's] effective date." The father had the option of also seeking relief via a petition filed in the Family Court, Sunshine said, pointing out the paradox that would result if the UCCJA were held applicable to motions seeking modification of pre-UCCJEA judgments, while the UCCJEA would apply if the same relief were sought in a new proceeding in Family Court. "Enactment of the UCCJEA should not be interpreted in a manner that would allow such blatant forum shopping," he said.
"Holding that the UCCJA is applicable to all custody disputes for parties divorced prior to April 28, 2002 would defeat the public policy of this state established in the UCCJEA which includes the new concept of continuing exclusive jurisdiction," Sunshine asserted. He thus held that the UCCJEA applied to the instant dispute and that lawmakers "obviously intended it to apply to all applications to modify custody disputes where such applications are made after the effective date of the statute."
Exclusive, Continuing Jurisdiction
Sunshine went on to say that the mother's reliance on the UCCJA's home state jurisdiction provision was misplaced because under the UCCJEA New York, as the court that issued the most recent custody determination, retains exclusive and continuing jurisdiction until it determines that neither the child nor the parties have a significant connection with the state and that substantial evidence concerning the child is no longer available in the state.
Going on to find that New York clearly possesses exclusive, continuing jurisdiction over the parties' custody dispute, Sunshine pointed out that the father still resides in the state. "The court declines to find that the parties no longer have a substantial connection with this jurisdiction, since the child continued to return to New York for lengthy visits with his father throughout the time that he and his mother resided in Norway and there was a written agreement which provided the period of time that the child was to be in Norway," he explained.
Also saying it was clear under the Act that the state that maintains exclusive, continuing jurisdiction may entertain a modification action, Sunshine stressed that the parties' 2002 agreement that the child would return to New York after the summer of 2004 established that they considered New York to be the child's permanent home state.
Further finding that he had jurisdiction under the federal Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A, Sunshine rejected the mother's contention that the child had been kidnapped and should be returned to Norway. While he did not condone the ruse by which the child was returned to New York, Sunshine asserted that the mother "clearly and intentionally" violated the parties' 2002 agreement. Sunshine thus ordered that the matter be readied for hearing.
