Published on:

Court Rules Divorce Case Claiming Domestic Violence

The parties herein were married in a religious ceremony on 1 June 2008, in Aventura, Dade County, Florida. There is one (1) child of this marriage who was born in August 2009.

The husband commenced the instant action for divorce in Kings County, New York and for custody of the minor child on or about 14 June 2011. At the time the action for divorce was commenced, the parties were living apart for several months.

A New York Criminal Lawyer said the wife instituted an action for divorce in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida and filed and received an ex-parte injunction on 18 March 2011 enjoining either party from removing the child from the State of Florida and allowing supervised visits with the child. The wife predicated her original petition on the grounds of domestic violence and the husband’s allegedly ordering the wife to take the child and reside with the maternal grandparents in Boca Raton, Florida. Her petition in Florida has since been amended on 5 July 2011 to include claims for both spousal and child support and alleging assault, battery and cyber stalking by electronic communication in Florida.

On 16 August 2011, the court conducted a joint hearing with pursuant to New York State Domestic Relations Law (DRL) section 76-(f)(3) on the record. The wife was present at the courthouse in Florida with Florida counsel appearing on behalf of their clients in Florida. The husband simultaneously appeared here in Kings County where both parties were also represented by New York counsel.

At the hearing both counsel conceded that New York was the “home state” of the infant based upon the fact that the child has not resided in Florida for six (6) months prior to the commencement of the Florida action. A Long Island Criminal Lawyer said the husband has steadfastly argued that the issues of custody and visitation should be argued before a New York Court. Conversely, the wife has steadfastly maintained that New York is an inconvenient forum and that pursuant to DRL 76- (f) and (g) this court should decline jurisdiction and allow the court in the State of Florida to try the issues of custody and visitation.

At the conference between the two courts, the Judge indicated that he would accept jurisdiction of the issues of custody and visitation, if this court were to determine that New York was an inconvenient forum.

Which court should decide the case?

Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. Relevant factors for the court’s consideration include:

(a) Whether domestic violence or mistreatment or abuse of a child or sibling has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(b) The length of time the child has resided outside this state;
(c) The distance between the court in this state and the court in the state that would assume jurisdiction;
(d) The relative financial circumstances of the parties;
(e) Any agreement of the parties as to which state should assume jurisdiction
(f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(h) The familiarity of the court of each state with the facts and issues in the pending litigation.
Inasmuch as New York is the “home state” of the child pursuant to Domestic Relation Law, the New York Court must determine if the home state is an inconvenient forum.

Civil Practice Law and Rules (CPLR) states, in part, that “When the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action.”

It appears to the satisfaction of the court that the husband consented to the wife moving with the child to Florida, and finds credible the claim that he knew the wife and her mother packed 40 boxes of personal belongings and furnishings, moved to Florida and that the move was not a temporary one. The indicia of a permanent move on consent is bolstered by the e-mail consent, by the husband, to the Florida court’s jurisdiction on the issue of custody and the financial arrangements made by the husband to contribute to the child’s care while in Florida and pay part of the cost of the movers. This coupled with the husband’s inconsistent statements in open court as to his earnings and ability to support the wife and child if they returned to New York and his inability and unwillingness to post an undertaking to provide for their care, support and maintenance during the period of litigation in New York, lead this court to conclude that New York is an inconvenient forum. The court notes that the acts of domestic violence alleged by the wife in her amended petition dated 5 July 2011 which occurred in Florida would constitute the basis for an ex-parte order of protection in the State of New York.

The wife and child are in Florida with the initial consent of the husband. The maternal grandmother, who is also a necessary witness, is also located in Florida. Under the circumstances presented, New York is an inconvenient forum to decide the issues.
Accordingly, the wife’s application for the issues of custody and visitation to be heard by the court in the State of Florida is granted.

Domestic violence cases are hard. And when children are affected, it makes the situation more difficult. The emotional impact on kids is just inconceivable. If you find yourself a victim of domestic violence, sex crimes or assault and need help, legally, contact Stephen Bilkis & Associates for a free consultation. You can talk to our legal team for advice.

Contact Information