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Court Decides Jurisdiction Issue in Domestic Violence Case

The parties met through the Internet in 2003, when the mother was studying veterinary medicine and the father was a teacher studying for a Master of Education degree. The parties married on 5 June 2004, in Kentucky. Six months later, the mother became pregnant, but continued her veterinary studies and graduated in May 2005. Upon graduation, the mother moved to New York, where the father joined her soon thereafter.

A New York Criminal Lawyer said that in September 2005, the mother gave birth, in New York, to twin daughters. On 31 October 2005, both parties and the children moved to Kentucky. In August 2006 the parties purchased a house in Kentucky.

In January 2007 the father commenced an action for divorce in Kentucky Family Court.
On 11 January 2007, while the Kentucky divorce action was pending, the Kentucky Family Court issued a pendente lite visitation order, which directed equal visitation time between both parties, and directed the parties to participate in mediation. As a consequence of the mediation, the parties reached an agreement regarding the distribution of most of their property, but could not reach a custody agreement.

In April 2007, the mother forwarded a proposed settlement order to the father, which would have held the divorce action in abeyance for one year, allowed the mother to return to New York for at least one year to pursue her career as a veterinarian, and outlined a living arrangement and schedule for residential custody, which provided that the parties and children would, over the next two years, alternate between Kentucky and New York. However, neither the parties nor the Kentucky Family Court signed the proposed settlement order.

On 20 April 2007, the mother and children moved to New York to live with the mother’s parents. Thereafter, the parties sold the house they had purchased together in Kentucky and the father moved in with his parents in Kentucky.

On 7 June 2007, both parties signed an “agreed order” to dismiss the Kentucky divorce action without prejudice to reinstatement of the action. From 9 June 2007, through 14 July 2007, the father resided with the mother and the children in the maternal grandparents’ home in New York.
The children visited their father in Kentucky at his parents’ home from 15 July 2007, until 27 August 2007, an approximately six-week period. While in Kentucky, the children did not have their own bedrooms but, rather, slept on a mattress on the floor of the father’s bedroom, during which time they contracted scabies. However, they were not diagnosed or treated for scabies until they returned to New York.

On 1 November 2007, according to a Bronx Criminal Lawyer, the mother filed the instant petition for custody in the Family Court, Orange County. In the petition, the mother requested sole custody of the children and that visitation with the father can occur only within New York State.

The mother asserted, among other things, that she had been the children’s primary caregiver since birth; there were no pediatricians or hospitals in Butler County, Kentucky, where the father resided; the nearest hospital to the father’s residence was 45 minutes away by car; and the home where the father resided was unsanitary. According to the mother’s petition, the father’s residence was infested with mice and did not have a functioning sewer line. Further, the petition alleged that the paternal grandparents’ property, where the father’s trailer was located, was infested with ticks and cockroaches. The mother further alleged that the father was verbally and physically abusive to her on multiple occasions, including, for example, one occasion on which the father threatened to kill her before he would let her take the children to New York.

According to the mother, on the same night the father made that threat, he forced her out of their car, requiring her to walk alone on a desolate road for miles before she reached home.
On 5 December 2007, while the mother’s petition for custody was pending in New York, the Kentucky Family Court granted the father’s motion for reinstatement of the previously-dismissed divorce action, but thereafter stayed that action on the mother’s motion.

Meanwhile, before the Family Court, Orange County, the mother asserted, inter alia, that New York was the children’s home state within the meaning of the UCCJEA since the children had lived in this state continuously since April 2007, i.e., for at least six months prior to her commencement of the instant proceeding, in accordance with the Domestic Relations Law.
On 12 February 2008, the father moved to dismiss the petition in the instant proceeding based on, inter alia, lack of subject matter jurisdiction.

The father argued, among other things, that the divorce and custody proceedings should both be litigated in Kentucky since the children had not lived in New York for the requisite six consecutive months prior to the mother’s commencement of this proceeding and, thus, New York was not their home state within the meaning of the UCCJEA. Rather, he contended, the mother commenced the proceeding less than four months after the children returned from Kentucky, after residing with him for six weeks during the summer of 2007. He argued that the children’s six-week absence from New York was not temporary and, thus, the children had not lived in New York for the requisite six consecutive months prior to the commencement of this proceeding.

Under the Domestic Relations Law, a state may have jurisdiction over a child custody proceeding if the “state is the home state of the child”. A “home state” is defined as “the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding”. The definition of home state also permits a period of temporary absence during the six-month time frame necessary to establish home-state residency.

Here, the facts support the mother’s contention that she intended to remain permanently in New York and that the children’s six-week visit to Kentucky during the summer of 2007 was a temporary absence which did not interrupt the six-month pre-petition residency period required by the UCCJEA. Although the mother may have expressed to the father that she would return to Kentucky, her actions indicated otherwise. For instance, the mother never changed her permanent address from New York to Kentucky, and her driver’s license, veterinary license, and voter registration all remained in New York. Furthermore, in New York, the children received special education services, had a pediatrician, and resided in their own home with the mother, who was the children’s primary caregiver since birth. Considering these facts, it is evident that the mother intended New York to be the permanent residence and home state for both her and the children. Her conduct could not be construed to evince intent to have the children stay permanently in Kentucky.

We are further persuaded that Kentucky is not the children’s home state by virtue of the fact that the father took no affirmative steps prior to the commencement of the instant proceeding to establish any permanent residence for the children in Kentucky. Considering the children’s health and developmental concerns, health care was and is highly important to the children’s well-being. Despite these health issues, the father did not retain a pediatrician or a therapist when the children resided in Kentucky. Moreover, the children did not have bedrooms but, rather, slept on the floor of the father’s room in the grandparents’ home. In sum, the mother’s decision to seek medical and psychological care for the children in New York demonstrated a level of permanency that was never achieved in Kentucky, and is indicative of a home-state residency for the children.

Although the parties and children previously resided as a family unit in Kentucky, and the children lived most of their lives in Kentucky, the father failed to show how the children’s move to New York constituted a temporary absence from Kentucky or was made through a wrongful removal.

In any event, a wrongful removal will not be treated as a temporary absence “if there is evidence that the taking or retention of the child was to protect the petitioner from domestic violence”. Other states have also applied the UCCJEA to protect victims of domestic violence who flee from one state to another with their children to escape abuse and seek custody in a different jurisdiction. Although one goal of the UCCJEA is to prevent forum shopping, another crucial purpose of the UCCJEA is to protect victims of domestic violence who, on their face, may be perceived as forum shoppers, but in reality are fleeing from one state to another to escape abuse.

Here, the mother admittedly misled the father about agreeing to reconcile their marriage. However, the mother averred that the father would not permit her to return to New York if she refused to attempt reconciliation. She, thus, asserts that although she lied to the father, she did so with the intent to return to New York to protect herself and the children from the threat of domestic violence. Pursuant to Domestic Relations Law, a party’s conduct may not be construed against him or her if he or she engaged in such conduct to protect against domestic violence.

Accordingly, the court does not construe the mother’s conduct as a wrongful removal, since her concededly false statement of intent was made to escape an allegedly abusive relationship which included threats of domestic violence.

In sum, the record reveals that the children’s six-week summer visit to Kentucky was merely a temporary stay similar to a summer vacation. The mother agreed to the six-week visit so that the children could have the opportunity to spend time with their family in Kentucky, with the understanding that the children would return to New York to resume their therapy and schooling. As a result, the children’s visit to Kentucky was not a change of residency, but was merely a temporary absence from New York. As such, under Domestic Relations Law, the children’s temporary absence from New York is considered to be part of the requisite six-month period. New York is thus the children’s home state and its courts have jurisdiction to hear the instant custody proceeding.

In addition to furthering the UCCJEA’s goals of protecting a party who has made allegations of domestic abuse and attending to the health and educational needs of the subject children, New York’s exercise of jurisdiction here furthers the statutory goal of strengthening jurisdictional certainty in child custody proceedings. In the interest of protecting children and parents who travel frequently between states, our recognition of the children’s six-week visit as a temporary absence permits parties to child custody proceedings to freely vacation and visit family members in other states without fear of losing home-state status.

Accordingly, since New York is the children’s home state within the meaning of the UCCJEA, the courts of New York have jurisdiction over the instant custody proceeding unless jurisdiction is declined. The court finds no ground to decline such jurisdiction and, thus, need not analyze whether New York or Kentucky is the more convenient forum.

If you are a victim of domestic violence, a sex crime, or assault, you should know what legal rights you have especially when there are children involved and their safety could be at risk. Contact Stephen Bilkis & Associates for a free legal advice on these matters. Talk to a New York Domestic Violence Attorney or a New York Criminal Attorney in our firm for your legal remedies.

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