On 4 September 1987, a man and a woman (or mother/petitioner and father) got married. Thereafter, on or about 24 July 1996, the couple divorced. A decree of divorce was entered and incorporated the terms of a separation agreement which provided that the parties were to share joint legal custody of their child, but that her primary residence was to be with the mother. A New York Sex Crimes Lawyer said the agreement also provided that the Colorado court was to retain continuing personal jurisdiction over the parties and subject matter jurisdiction over the disputes relating to the enforcement of the agreement.
On or about 18 March 1998, the mother suffered a near fatal car accident in Colorado. On or about 22 March 1998, the child left her Colorado home for a previously scheduled visit with her father, who was then residing in Queens County, in New York City. The visit was to conclude on 28 March 1998.
On March 27, however, the father filed a petition in Family Court, Queens County, seeking custody of their child.
The mother acknowledges that she was served with the petition, but alleges that, because of her car accident, she was too weak to travel to New York to contest it.
In the petition, the father alleged that the court should exercise “emergency jurisdiction” pursuant to Domestic Relations Law so as to protect the child. Specifically, the father alleged, among other things, that the child had moved with the mother approximately five times in the last several years, and that she had been exposed to repeated serious incidents of domestic violence: “Each time the mother moved, she has taken up with a different boyfriend, and each boyfriend has been physically abusive to the respondent mother. A New York Sex Crimes Lawyer said that upon information and belief, one boyfriend broke the respondent mother’s shoulder; another boyfriend broke her mother’s nose. Although the subject child has not directly witnessed these severe occasions of physical abuse, she was aware of it happening in that she heard the sounds, screaming and yelling as it occurred. On at least one occasion, the subject child did hear one boyfriend smash the petitioner’s car window out of anger, and later saw the actual broken glass.”
The petition also recites that the father had the child seen by a certified social worker who subsequently prepared a facially thorough report that was made available to the Queens County Family Court. That report supported the allegations in the petition concerning the transient nature of the child’s existence with her mother and her exposure to domestic violence.
The Agency for Children’s Services (ACS) also prepared a report that was made available to the court. The report stated that the father and his new wife were taking good care of the child in their home. In addition, the report recited that its author had spoken to the mother in Colorado by phone on 31 March 1998 and 22 June 1998. Although the mother “denied partly” the incidents of domestic violence she apparently did not intend to contest the petition: “Mother said she has returned to her job but that she is not in a good condition of health to appear in Court on the case at this time and that she does not know how soon she might be able to come. The mother said she would relinquish her legal custody of the child to the father this time due to in-ability to appear in court. She said she would later consider asking the Court to return child’s custody to her when she becomes very healthy.”
On 24 June 1998, the Queens County Family Court granted the father a final order of custody. Petitioner learned of that Order no later than 22 July 1998, when the Law Guardian who had been assigned to the case wrote her, stating, “The judge indicated that he was issuing the order without prejudice for you to seek custody when you are healthy.”
The mother took no steps to regain custody until 28 April 1999 when she filed the instant petition. A Nassau County Sex Crimes Lawyer said the mother expressly sought “modification” of the Queens Order by reason of “changed circumstances,” including the father’s alleged interference with the mother’s access to the child and the fact that the mother had recovered from her car accident so that she now has full capacity to once again resume the physical care for her child. As relief, the mother sought “reinstatement” of the “original custody determination of the” Colorado court. Nowhere in the petition did the mother suggest that the New York Family Court lacked jurisdiction to adjudicate the substantive custody issue.
Following the father’s appearance, a Law Guardian was appointed, and a temporary order of visitation was granted the mother.
On or about 21 June 1999, the mother filed a motion in Colorado District Court for the return of the Minor Child and to Reaffirm Colorado Jurisdiction. A Queens Sex Crimes Lawyer said that in those papers, she alleged that the Queens County Family Court had been without jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA) to enter its order granting the father custody since it impermissibly modified a preexisting custody decree over which the Colorado court retained jurisdiction. She requested that the Colorado Judge to whom the matter was assigned confer with the undersigned and that the Colorado court “affirm jurisdiction” over the dispute and direct the return of the child to her.
Thereafter, on 12 August 1999, the mother filed the instant motion based upon an amplification of the allegations raised in Colorado, in that she asserts that under the UCCJA and Parental Kidnaping Prevention Act, the Queens County Family Court lacked subject matter jurisdiction to grant the father custody. Specifically, among other things, she alleges and the Law Guardian agrees that the Queens County Family Court could not exercise jurisdiction unless the Colorado court declined to exercise jurisdiction over the parties’ dispute and that the Judge improperly failed to contact the Colorado court to determine whether such a declination would be made. Furthermore, she asserted that there was no independent basis for the exercise of jurisdiction in New York since it was not the home State of the child at the time of the filing of the father’s petition and because the father’s allegations and factual submissions did not warrant, as a matter of law, the exercise of “emergency jurisdiction.” In addition, contradicting the information set forth in the ACS report prepared in conjunction with the Queens proceedings, the mother denied that she had ever told ACS that she consented to the grant of custody to the father.
Who is entitled to the custody of the child?
Contrary to the mother’s position, it is clear that the Queens County Family Court had subject matter jurisdiction to issue its Order. Domestic Relations Law grants the Family Court subject matter jurisdiction to deal with custody matters where the child is physically present in its state and it is necessary in an emergency to protect the child. It is plain that the evidence made available to the Queens County Family Court on its face justified the exercise of jurisdiction under that section.
Evidence including the reports of social worker supported the father’s allegation that the child had been repeatedly exposed to acts of serious domestic violence visited upon the mother. There is little question that, if true, such exposure places the child’s physical and emotional well-being at substantial and immediate risk. Indeed, it can provide the predicate for a finding of neglect.
Moreover, the evidence presented and the petition’s allegations were uncontested by the mother at the time of the court’s consideration of the petition. Clearly, under these circumstances, “emergency jurisdiction” existed and empowered the court to issue its Order. As stated: “Once an emergency is found to exist, the court has jurisdiction and is empowered to determine the issue of child custody. The emergency and the child’s safety outweigh all other considerations.”
A different conclusion is not mandated by the fact that the parties were apparently subject to the jurisdiction of the Colorado court at the time the Queens County Family Court considered the matter. It is true that, by its terms, the PKPA provides that a court of one State may modify the preexisting custody determination of another State only if, inter alia, the court of the other State no longer has jurisdiction, or has declined to exercise such jurisdiction to modify such determination. It is further true that had the issue of the prior Colorado decree been raised to the Queens County Family Court, the PKPA would have thus been implicated, the procedures it contemplates may have been triggered, and a different result may have obtained. However, the fact is that the mother did not raise the issue before the Queens County Family Court. Under these circumstances, the failure to consider its implications did not deprive the Queens County Family Court of jurisdiction in the sense of depriving it of authority to consider the matter.
A court which otherwise has “subject matter jurisdiction” over a custody dispute may not be deprived of that jurisdiction by the PKPA. In other words, its “competence to entertain” a custody petition is not diminished by operation of the PKPA. Indeed, by its relevant terms the PKPA does not purport to implicate that “competence.” Rather, consistently with the manner in which the statute is designed to operate, the statute’s language affects only the court’s “power to reach the merits” of an interstate custody dispute. Thus, it acknowledges that a court considering modification of a sister State’s decree might have the competence to act on the issue, but should only exercise its authority and reach the merits if certain conditions are met, viz.: “A court of a State may modify a determination of the custody of the same child made by a court of another State, if (1) it has jurisdiction to make such a child custody determination; and (2) the court of the other State lacks or declines the exercise of jurisdiction.
As applied to the facts of the instant case the foregoing principles preclude a conclusion that the Queens County Family Court lacked subject matter jurisdiction to issue its Order. As noted, it had the “competence to entertain” the father’s petition by reason of the facts giving rise to “emergency jurisdiction.” The fact that the PKPA could or should have been invoked does not undermine that competence. Put another way, the failure to apply the PKPA may have been an error of law, but it is not an “objection so fundamental to the power of adjudication of the court,” that it should survive the final order.
Moreover, the mother did not challenge the exercise of jurisdiction until more than a year after the Queens Order issued. Indeed, when she first commenced the instant proceeding, she invoked the jurisdiction of this court and sought modification of the Queens Order, rather than being vacated. Having long acquiesced to the exercise of authority by the State, she should not now be heard to complain.
The mother’s true substantive objection is the failure of the Queens County Family Court to apply the PKPA and that objection should and could have been raised at the outset of the Queens proceedings. Her failure to do so operates as a waiver of that non-jurisdictional objection.
Thus, the court finds that the Queens County Family Court had jurisdiction over the dispute sufficient to issue its Order and denies the motion to vacate the Queens Order on jurisdictional grounds. However, that Order was entered on default, with the mother never having had the opportunity to challenge the merits of the father’s claim to custody. By the same token, the initial Colorado order was entered without the benefit of a fact-finding. Given all these circumstances, as well as the mother’s alleged recovery from her automobile accident and the other matters relating to the parties’ relative fitness as set out in their affidavits, it is apparent that a plenary best interests hearing to determine custody is required which should take place in New York, rather than in Colorado. Given the fact that the child has been in New York with the father for nearly two years now, and is attending school here, it cannot be said that substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in Colorado. Moreover, for the reasons stated, the most recent valid order governing custody is the one issued by the New York court.
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