Plaintiff-husband moves, by order to show cause for an order: (1) directing defendant-wife to produce the subject child, in the court; and (2) transferring custody from the wife to the husband; and (3) granting such other and further relief as the court may determine.
A Kings County Family attorney said that the parties herein were married in a religious ceremony in June 2008, in Aventura, Dade County, Florida. There is one (1) child of this marriage who was born in August 2009 recently turned two (2) years of age. The husband commenced the instant action for divorce in Kings County, New York and for custody of the minor child in June 2011. At the time the action for divorce was commenced, the parties were living apart for several months.
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 in 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 Florida. Her petition in Florida has since been amended in July 2011 to include claims for both spousal and child support and alleging assault, battery and cyber stalking by electronic communication in Florida.
Thereafter, the criminal court conducted a joint hearing 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 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. 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 joint 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.
DRL section 75-f (2) delineates the factors the court must consider in determining if New York is an inconvenient forum: 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. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including: (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.
The wife predicates her claim of inconvenient forum upon the following:
First, the wife alleges that the husband forced her to leave the residence they were occupying in the home of the husband’s parents in Brooklyn, New York and to move to Florida after a dispute as to the proper color to paint the child’s room. In her amended pleading in Florida the wife alleges additional acts in Florida which constitute domestic violence. The wife also indicates that the husband has acted inappropriately during visitation some of which have occurred via Skype. The wife avers that the acts occurred in Florida after the original petition was filed and that these acts will be a part of a custody proceeding.
Second, the wife indicates that she has no means of support to maintain herself in the lifestyle of the parties during the marriage other than the support she receives from living with and by her parents in Florida. The wife also maintains that the husband does not support her, nor will he provide her with adequate funds once she returns to New York. The wife avers that she has no place to live in Brooklyn, New York.
Third, the wife and child have resided in Florida for more than five (5) months before this action in New York was commenced and that the wife and child moved to Florida after the husband forced them to leave the marital home they were occupying with the husband’s parents in Brooklyn, New York and that the husband told the wife to leave. The wife alleges that the husband saw them pack over 40 boxes during a three day period and consented to a permanent move.
Fourth, there was an agreement for the wife to live with her parents in Florida and a concession that the issue of custody and visitation would be heard in Florida and same was confirmed in an e-mail from the husband.
Fifth, the husband took affirmative steps recognizing that Florida was where the child would reside such as paying for child care in Florida and by asking the wife to seek a refund from the daycare provider in Brooklyn and verifying same in writing.
Sixth, the husband knew the cost of the move and that all of the wife’s and child’s belongings and possessions were moved to Florida which is supported by documentary evidence. The wife also provides a copy of the check from the husband paying the movers fee for her move from New York to Florida; and,
Finally, the child, the wife and the maternal grandparents all of whom reside in the State of Florida will be witnesses in any proceeding. The wife contends that the husband called the maternal grandmother who was vacationing in Vermont on 2011 and demanded that the grandparents come to New York and take the wife and child back to Florida. She states that the maternal grandmother helped pack the wife’s and the child’s belongings.
On the other hand, the husband contends that:
First, there is no history of domestic violence and no domestic incident reports have been filed and that the claim of domestic violence is a fabrication;
Second, the move to Florida was to be a temporary move, with the wife returning with the child once their new home which was being built in Brooklyn, New York was complete. The husband claims that the furnishings and belongings that were moved were already in boxes from a prior move; and that he did not know the move to Florida was a permanent move.
Third, the husband will voluntarily pay for the wife and child’s transportation to New York and that they can live in an empty home that his cousin’s own in Brooklyn, New York since the home being built for the parties is no longer available. The husband alleged at oral argument that he earns $200.00 per week and then maintained he also earned $42,000.00 per year as an employee of his father’s company. This Court notes that at oral argument the husband could not commit to providing adequate support to provide for the wife and child to reside in New York during the litigation. He states that the email was a quid pro quo for the husband receiving substantial visitation which was never agreed upon.
Third, the husband avers that the e-mail that the wife states establishes his concession to her move to Florida with the parties’ child and to Florida jurisdiction for the determination of custody and visitation was part of a negotiation to attempt to settle the matter and not an agreement.
Fifth, the husband avers that substantial evidence exists in New York on the issue of custody and visitation.
The wife’s application for the issues of custody and visitation to be heard in Florida under the doctrine of inconvenient forum pursuant to NY DRL Section 76-(f) and DRL 76(g) of the UCCJEA is granted after consultation between the Florida Court and the New York Court.
Inasmuch as New York is the “home state” of the child pursuant to Domestic Relation Law section 75-a(7) the New York Court must determine if the home state is an inconvenient forum. CPLR 327 states, in part, that (a) 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.
The Appellate Division, Second Department has held that “if the court determines that it does retain exclusive and continuing jurisdiction over the custody issue, it may exercise that jurisdiction or it may decline to do so if it finds, after considering the factors set forth in Domestic Relations Law § 76—f(2)(a)—(h) and allowing the parties to be heard, that New York is an inconvenient forum.
It appears to the satisfaction of this 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 in July 2011 which occurred in Florida would constitute the basis for an ex-parte order of protection in the State of New York pursuant to DRL section 240.
After consultation with the judge in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County Florida the wife’s application for the issues of custody and visitation to be heard by the court in the State of Florida is granted. This court considered the wife and child’s relocation to Florida where they reside with the maternal grandparents who are providing the wife and the child support and shelter and have done so for a period in excess of five (5) months prior to the commencement of the instant litigation. 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 these issues.
Here in Stephen Bilkis and Associates, our Kings County Domestic Violence lawyers are always ready to render their legal services for the abused spouses. They will represent such victims in court litigation proceedings from commencement until verdict. We also have our Kings County Order of Protection attorneys who will secure said order from court for the protection of the abused spouse.