Panel Finds International Custody Battle Belongs in NY

According to the decision, the act, which is codified in New York Domestic Relations Law (DRL) article 5, is designed to eliminate jurisdictional competition between courts in matters of child custody. Section 76 of the law focuses on the child's home state ' the state or country in which a child has lived with a parent for a minimum of six consecutive months immediately before the initiation of a custody proceeding.

Normally, when a pending custody order exists, a home state court will decline to exercise jurisdiction, explained a family law practitioner who was not involved in the case. Here, however, the Appellate Division found that the pending proceeding in Italy was not substantially in conformity with the uniform law.

The Case

The underlying custody dispute arose between the father, a U.S. citizen, and the mother, both an Italian national and a U.S. citizen. The couple's only child was born in Italy in July 2001, with dual citizenship. In April 2004, a New York court declined to oversee custody issues following the couple's divorce, because their 27-month-old son had lived only nine months of his life in New York. On Dec. 2, 2005, the Court of Rome awarded the mother sole custody, allowing her to decide whether she would live in Italy or the United States, and granting the father visitation rights in both countries.

From January 2005 onward, the mother lived in New York with her son, independently of the father, who also lived in the state. The father appealed to the Italian court for joint custody in July 2006. The mother requested that the family court modify the Italian court's order and suspend visitation, alleging the father had abused the child.

On March 6, 2007, two days before the court found that there had been no abuse, the mother fled to Italy in violation of a New York court order. On March 22, 2007, the mother's attorney appeared in Family Court alone and indicated on the record that the mother had fled to Italy because 'she does not believe she is getting a fair hearing [in Family Court].' Subsequently, the family court ruled that New York was the child's home state, awarded the father temporary custody, ordered the mother to return the child, and issued an arrest warrant against her. The father petitioned for sole custody, but on June 12, 2007, the family court dismissed his cross petition, vacated all outstanding arrest warrants and dismissed the proceeding. The court ruled it had no legal authority to modify custody or enforce visitation, finding that the Italian court order was detailed and explicit in permitting the mother to reside in Italy with her son.

New York 'Home State'

The appellate division criticized the family court's reliance on the Italian order and found that the parties, mother, father and child were living in New York for a sufficient period of time to establish that New York has jurisdiction in the custody modification proceeding.

Since New York was the home state, Italian jurisdiction was not substantially in conformity with the uniform custody act, the court concluded, and reinstated the father's custody petition.

Noeleen G. Walder is the state court reporter for the New York Law Journal, a sister publication of this newsletter. She can be reached at [email protected].

A Manhattan appellate court refused to relinquish jurisdiction over a custody case in which a mother fled with her 5-year-old son to Italy because she thought she was not getting a fair hearing in a New York Family Court. In an unusual ruling in late December 2007, the Appellate Division, First Department, reversed the conclusion of Manhattan Family Court that the case belonged in the Italian courts. It found that the family court's order gave 'the mother a choice of jurisdictions, and thus the concomitant right to disregard any orders of the court of which she availed herself when she failed to obtain the desired outcome.' In re Michael McC. v. Manuela A., 2114-2115-2116.

Dissenting Opinion

However, a dissenting opinion expressed concern that the majority's holding raise[d] the distinct possibility of competing child custody determinations ' precisely the eventuality that the Uniform Child Custody Jurisdiction and Enforcement Act, was designed to avoid.

According to the decision, the act, which is codified in New York Domestic Relations Law (DRL) article 5, is designed to eliminate jurisdictional competition between courts in matters of child custody. Section 76 of the law focuses on the child's home state ' the state or country in which a child has lived with a parent for a minimum of six consecutive months immediately before the initiation of a custody proceeding.

Normally, when a pending custody order exists, a home state court will decline to exercise jurisdiction, explained a family law practitioner who was not involved in the case. Here, however, the Appellate Division found that the pending proceeding in Italy was not substantially in conformity with the uniform law.

The Case

The underlying custody dispute arose between the father, a U.S. citizen, and the mother, both an Italian national and a U.S. citizen. The couple's only child was born in Italy in July 2001, with dual citizenship. In April 2004, a New York court declined to oversee custody issues following the couple's divorce, because their 27-month-old son had lived only nine months of his life in New York. On Dec. 2, 2005, the Court of Rome awarded the mother sole custody, allowing her to decide whether she would live in Italy or the United States, and granting the father visitation rights in both countries.

From January 2005 onward, the mother lived in New York with her son, independently of the father, who also lived in the state. The father appealed to the Italian court for joint custody in July 2006. The mother requested that the family court modify the Italian court's order and suspend visitation, alleging the father had abused the child.

On March 6, 2007, two days before the court found that there had been no abuse, the mother fled to Italy in violation of a New York court order. On March 22, 2007, the mother's attorney appeared in Family Court alone and indicated on the record that the mother had fled to Italy because 'she does not believe she is getting a fair hearing [in Family Court].' Subsequently, the family court ruled that New York was the child's home state, awarded the father temporary custody, ordered the mother to return the child, and issued an arrest warrant against her. The father petitioned for sole custody, but on June 12, 2007, the family court dismissed his cross petition, vacated all outstanding arrest warrants and dismissed the proceeding. The court ruled it had no legal authority to modify custody or enforce visitation, finding that the Italian court order was detailed and explicit in permitting the mother to reside in Italy with her son.

New York 'Home State'

The appellate division criticized the family court's reliance on the Italian order and found that the parties, mother, father and child were living in New York for a sufficient period of time to establish that New York has jurisdiction in the custody modification proceeding.

Since New York was the home state, Italian jurisdiction was not substantially in conformity with the uniform custody act, the court concluded, and reinstated the father's custody petition.

Noeleen G. Walder is the state court reporter for the New York Law Journal, a sister publication of this newsletter. She can be reached at [email protected].