In Stocker
v. Sheehan, 2004 WL 2386456 (N.Y.A.D. 1 Dept.) the Appellate Division
reversed on the law an order of the Supreme Court which granted the
petitioner-mother's application to modify a 1994 Rhode Island custody and
visitation order as well as part of a 1994 Rhode Island judgment of divorce
pertaining to child support and denied the father's cross motion to dismiss
the petition for lack of subject matter jurisdiction and for summary
judgment, and dismissed the petition. The parties were divorced in July 1994
in Rhode Island after a contested trial which awarded the parties joint
custody of the child. The court awarded extensive visitation to the father,
who was directed to pay child support . The judgment of divorce stated: "The
State of Rhode Island shall retain jurisdiction and is declared to be the
'home state' as to any decisions concerning custody and visitation in
accordance with the provisions of the Rhode Island Uniform Child Custody
Jurisdiction Act."
From his birth until the fall of 1994, the child resided in Rhode Island.
In 1994, after a hearing, the Rhode Island Family Court entered an order
permitting the mother to relocate to New York on condition that the father
have extensive visitation in Rhode Island, including, inter alia, three
weekends every month. The order required the mother to deliver William to
and pick him up from Providence on two weekends and New Haven, Connecticut
on the other weekend and to bear the cost thereof. The order further
provided, "The State of Rhode Island shall retain jurisdiction and is
declared to be the 'home state' as to any decision concerning custody,
visitation and child support, and shall be in accordance with provisions of
the Rhode Island Uniform Child Custody Jurisdiction Act, General Laws of
Rhode Island, 1956, as amended 15- 14-1 through 26." The parties
substantially adhered to these provisions from November 1994 to the present.
The mother commenced a
proceeding in September 2003 in Supreme Court, New York County for an order
"a) modifying the extraordinary visitation schedule entered almost nine
years ago; and b) modifying and enforcing the child support provisions
established pursuant to the parties' divorce over nine years ago." In her
petition, the mother asserted that the nine-year-old visitation schedule was
becoming "more socially, developmentally and educationally onerous" for the
child, who wanted to spend more time with his friends. The mother also
attacked the original child support order as vague, outdated and in
contravention of public policy and in violation of child support standards.
The father cross-moved to
dismiss the petition under CPLR 3211(a) and (c) and for summary judgment
under CPLR 3212 on the ground that Supreme Court did not have subject matter
jurisdiction, asserting that the Family Court of Rhode Island had exclusive,
continuing jurisdiction over this matter and that a New York court was
barred from modifying the order of the Rhode Island court under the
provisions of Domestic Relations Law 76(1)(b), Family Court Act 580-205(d),
28 USC 1738A and 1738B. Supreme Court granted the motion in its entirety and
denied the cross motion, finding that Rhode Island no longer had
jurisdiction to determine the custody/visitation issue since New York was
the child's home state for at least six consecutive months before the
commencement of this proceeding. Supreme Court determined, that the recently
enacted Rhode Island Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA) prohibits Rhode Island from entertaining a petition to modify its
pre-UCCJEA determination because Rhode Island is no longer the child's home
state. The court also set the matter down for a hearing on the requested
modification of the Rhode Island order of visitation.
The Appellate Division
reversed. Noting that Rhode Island's UCCJEA, but not New York's, contains a
specific transitional provision, General Laws 15.14.1-42, that requires
enforcement of the law in effect at the time "the motion or other request
[for relief] was made." As the comment to the transitional provision of the
UCCJEA notes, "The provisions of this act apply if a motion to modify an
existing determination is filed after the enactment of this Act" (Uniform
Child-Custody Jurisdictional and Enforcement Act (with Prefatory Note and
Comments by Robert G. Spector) 32 Fam L Q No. 2, Summer 1998, 301, 384).
Rhode Island's UCCJEA,
like New York's, introduces the concept of "exclusive, continuing
jurisdiction," but limits the concept to only child custody determinations
"consistent with this chapter," i.e., Chapter 15 of the Rhode Island General
Laws. Thus, under Rhode Island law, a New York court may divest Rhode Island
of exclusive, continuing jurisdiction in this matter only if the New York
court determines that the child and the child's parents do not presently
reside in Rhode Island. Since the father remained a Rhode Island resident,
no such determination can be made.
The Appellate Division
held that New York lacks subject matter jurisdiction to determine the
subject custody/ visitation issue despite the fact that the child was now
and has been for the past nine years a resident of New York. New York's
Domestic Relations Law 76-b, which is part of the New York version of UCCJEA,
states as follows: Except as otherwise provided in section seventy-six-c of
this title, a court of this state may not modify a child custody
determination made by a court of another state unless a court of this state
has jurisdiction to make an initial determination under paragraph (a) or (b)
of subdivision one of section seventy-six of this title and: 1. The court of
the other state determines it no longer has exclusive, continuing
jurisdiction under section seventy-six-a of this title or that a court of
this state would be a more convenient forum under section seventy-six-(f) of
this title; or 2. A court of this state or a court of the other state
determines that the child, the child's parents, and any person acting as a
parent do not presently reside in the other state. "Custody determination,"
includes visitation rights.
Given the father's
residency in Rhode Island, the prerequisites for jurisdiction to hear this
matter in New York could not be clearer: Rhode Island must first decline
jurisdiction since a court of this state may not modify a child custody
determination made by a court of another state "unless .. [t]he court of the
other state determines it no longer has exclusive, continuing jurisdiction
... or that a court of this state would be a more convenient forum ..."
(Domestic Relations Law 76-b[1] ). "Where a different state possesses
exclusive, continuing jurisdiction New York cannot take jurisdiction unless
the foreign state declines, even though the parties clearly no longer have a
significant connection with the state "There is no recourse when a
recalcitrant state refuses to yield" . "The modification state is not
authorized to determine that the original decree state has lost its
jurisdiction." .
It also held that it was
equally clear that it is for the Rhode Island court, not a New York court,
to decide the issue of whether Rhode Island has "exclusive, continuing
jurisdiction" since it is a condition to New York's exercise of jurisdiction
to modify a child custody determination made by a court of another state
that "[t]he court of the other state determines it no longer has exclusive,
continuing jurisdiction" (Domestic Relations Law 76-b[1] ).
Rhode Island's UCCJEA
makes continuing jurisdiction of custody decrees exclusive until a
Rhode Island court determines that neither the child, the parents or any
person acting as a parent has a significant connection with Rhode Island and
that substantial evidence is no longer available in Rhode Island
concerning the child's care, protection, training, and personal
relationships (Rhode Island Gen Laws 15-14.1-14[a][1] )
The use of the phrase "a
court of this state" in section 15-14.1-14(a)(1) makes it clear that Rhode
Island is the sole determinant of whether jurisdiction continues and a party
seeking to modify a custody determination must obtain an order therefrom
declaring jurisdiction.
Even in the absence of the
provision in the Rhode Island custody order expressly retaining jurisdiction
as to any subsequent decisions concerning custody, visitation and child
support, "[t]he majority of courts that have considered the issue of
continuing jurisdiction ... have held that 'the state in which the initial
decree was entered has exclusive continuing jurisdiction to modify the
initial decree if: (1) one of the presents continues to reside in the decree
state; and (2) the child continues to have some connection with the decree
state, such as visitation' " .
The mother's argument that
the initial child custody determination of the Rhode Island court under the
UCCJA could not have been "consistent with" UCCJEA was rejected since
UCCJEA's jurisdiction on a child custody determination "generally continues
the provisions of the UCCJA 3" . At the time of the initial child custody
determination in 1994, Rhode Island was the child's "home state," as defined
under both UCCJA and UCCJEA. Not only was that determination "consistent
with" UCCJEA's requirements, but it also reflected the same determination to
exercise jurisdiction as would be required under UCCJEA. Thus, under the
facts presented, absent a Rhode Island court's declination of jurisdiction
under Rhode Island Gen Laws 15-14.1- 14(a)(1), Rhode Island had "exclusive,
continuing jurisdiction."
The Appellate Division
held that the mother's claim that "consistent with" UCCJEA means "pursuant
to" UCCJEA was contrary both to the accepted meaning of these phrases and to
the purpose of UCCJEA to avoid forum shopping when the original custody
decree is consistent with UCCJEA. Moreover, the proposition that a custody
determination made under UCCJA is not "consistent with" UCCJEA leads to an
absurd result. Since UCCJEA is merely a "revised version" of UCCJA (Spector,
supra at 307, 307 n 8), the drafters could not have intended that courts
deciding cases under the former statute would, under the latter, lose
"exclusive, continuing jurisdiction" of all such cases.
Because, under Rhode
Island law, Rhode Island had exclusive, continuing jurisdiction, Supreme
Court's assertion of jurisdiction violated the PKPA, which pre-empts state
law . Under 28 USC 1738(A)(h) "A court of a State may not modify a
visitation determination made by a court of another State unless the court
of the other State no longer has jurisdiction to modify such determination
or has declined to exercise jurisdiction to modify such determination".
UCCJEA's continuing jurisdiction provisions are narrower than the comparable
provisions of PKPA, which authorizes continuing jurisdiction as long as the
original decree state remains the residence of any "contestant" and that
state continues to retain jurisdiction under its own law (28 USC 1738A[d] ).
It also noted that under the PKPA a court of a state may not modify a
custody determination made by another state unless, inter alia, the court of
the other state no longer has or has declined to exercise jurisdiction (28
USC 1738A[f]). New York courts have consistently rejected the mother's
argument that PKPA applies only to kidnapping. PKPA contains no such
condition to its application.
The Appellate Division
held that Supreme Court also erred in exercising jurisdiction over the 1994
Rhode Island judgment of divorce as it relates to child support, which, in
light of the State's adoption of the Uniform Interstate Family Support Act [UIFSA]
(Family Court Act 580-205[d] ), is prohibited by the exclusive, continuing
jurisdiction of the Rhode Island court. UIFSA requires recognition of Rhode
Island's exclusive, continuing jurisdiction with respect to child support
under the 1994 judgment, given the father's continuing residence there and
the absence of the consent of the parties to a change.(citing 28 USC
1738B[d] and [e] ).
|
