Decisions of Interest

Court Denies Joinder of Action That Would Delay Child Support

Supreme Court, Nassau County, denied a father's attempt to join his child support obligation termination request to the mother's motion to have him held in contempt for failure to pay, as joinder would delay the proceedings, to the detriment of the children. BJG v. MDG, — N.Y.S.2d —-, 2010 WL 3384903 (Sup. Ct., Nassau Cty., 8/31/10) (Falanga, J.).

The mother moved to have the father held in contempt for failing to pay college expenses for the couple's children, which he was required to pay in accordance with a stipulation of settlement. The father then moved to terminate his child support obligation for the older children, arguing that they had constructively emancipated themselves. The court noted that joinder of the plenary action, which sought judgment setting aside the child support provisions of the parties' stipulation of settlement, would inordinately delay the adjudication for the mother's post-judgment divorce enforcement application. This delay would harm the children, whose financial needs had to be met now, rather than at some future time after their parents' disputes had been settled. Not only did this circumstance militate against permitting joinder, but the mother's action and the application for a declaration that the children were emancipated did not share common questions of law or fact. For these reasons, the court denied the father's motion for joinder.

Children Must Move, So Court Turns to Technology

Financial reasons dictated a mother be permitted to move with her children away from their father, but to alleviate the hardship of the separation, the court ordered the mother to set up a Skype account to allow the children to speak frequently with and see their father over the Internet. Baker v. Baker, 29610-2007, NYLJ 1202464436957, at *1 (Suffolk Cty. Sup., Aug. 4, 2010) (Garguilo, J.).

Pursuant to a stipulation of settlement, the mother had custody of the couple's two children, while the father was given five hours of supervised visitation with them each week. The visits were supervised because of the father's admitted alcoholism; however, when they entered into the stipulation, the parties intended that the father's visits would become unsupervised once he conquered his addiction. Since then, the father has completed an alcohol rehabilitation program and has proved his sobriety.

Because the mother had lost her job and could not find another, she sought court permission to move with her children to her parents' home in Florida, where she would have a chance to look for work while receiving their support. The father opposed the move, saying that he wanted to see his children on a regular basis. The court found that the move was warranted due to financial necessity, but it allowed the move only conditionally. One of those conditions was that the mother “at her own cost and expense ' see to it, prior to re-location, that the [father], as well as the children, are provided the appropriate Internet access via a Skype device which allows a real time broadcast of communications between the [father] and his children.” The mother was tasked with making the children available for a Skype-enabled visit three times per week, for at least one hour per session. In addition, once she finds work it will be her responsibility to pay for the children's transportation when they visit their father in New York.

Fed Court Will Not Second-Guess Family Court

The U.S. District Court for the Eastern District of New York declined to hear a suit brought by an unhappy father against Family Court, finding that because states and their agencies are protected by the doctrine of sovereign immunity under the Eleventh Amendment it could not entertain the action. Charleston v. New York State Family Court, Slip Copy, 2010 WL 3463135 (E.D.N.Y.).

The court permitted the plaintiff to appear pro se, following his request to proceed in forma pauperis. He did so, presenting a claim against Family Court claiming that court unfairly removed his children from their mother's care for medical neglect when in fact they suffered only from eczema. He asserted the defendant had “been practicing cruel and unusual punishment” and he requested award of monetary damages. The court found that the 11th Amendment to the U.S. Constitution prohibited it from hearing the case. In addition, even if not barred by the 11th amendment, the court would have declined to take the case because state courts, not federal, are more suited to determining family issues. Finally, the court certified, pursuant to 28 U.S.C. ' 1915(a)(3), that any appeal would not be taken in good faith and that, therefore, in forma pauperis relief would be denied to the plaintiff should he attempt to appeal the matter further.

Too Late to Remedy Court's Mistake

The Appellate Division, Second Department, affirmed the dismissal of a child custody action although the dismissal was not warranted at the time it occurred, because in the intervening year and half the child's contacts with the State of New York had become insignificant, and the State of Connecticut had exercised jurisdiction in the matter. Wnorowska v. Wnorowski, 2010 WL 3419266 (2d Dept., 8/31/10)(Fisher, J.P., Dickerson, Eng and Belen, JJ.).

In November 2008, Family Court, Kings County, dismissed a petition to modify its prior order in a matter concerning child visitation, finding that Connecticut, to which the child had been taken by the father, was the more convenient forum. Between that time and the time that this appeal was heard, a Connecticut Superior Court entered a judgment of divorce awarding custody of the child to the father and “reasonable,” but unspecified, visitation to the mother.

In accordance with the Uniform Child Custody Jurisdiction and Enforcement Act, codified in Article 5-A of the Domestic Relations Law (DRL), New York courts that have made an initial custody determination have exclusive continuing jurisdiction over that determination, unless jurisdiction should be relinquished because the child no longer has a significant connection to New York and “substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships” (DRL ' 76-a(1)(a)). In this case, the mother's modification petition was made just three months after the child was moved to Connecticut, so at that time it retained substantial ties with the child and should have exercised its continuing jurisdiction. (Even if exercise of jurisdiction is still lawful, a court may decline to exercise for reasons of forum non conveniens; however, here, the Second Department found that, at the time the matter was dismissed, Family Court was not an inconvenient forum.)

As a Connecticut court had already handled the divorce and custody issues in this matter, its decisions were entitled to receive full faith and credit in New York. Therefore, although Family Court erred in relinquishing jurisdiction, its order must be affirmed due to the lapse of time and the occurrence of subsequent events.

Court Denies Joinder of Action That Would Delay Child Support

Supreme Court, Nassau County, denied a father's attempt to join his child support obligation termination request to the mother's motion to have him held in contempt for failure to pay, as joinder would delay the proceedings, to the detriment of the children. BJG v. MDG, — N.Y.S.2d —-, 2010 WL 3384903 (Sup. Ct., Nassau Cty., 8/31/10) (Falanga, J.).

The mother moved to have the father held in contempt for failing to pay college expenses for the couple's children, which he was required to pay in accordance with a stipulation of settlement. The father then moved to terminate his child support obligation for the older children, arguing that they had constructively emancipated themselves. The court noted that joinder of the plenary action, which sought judgment setting aside the child support provisions of the parties' stipulation of settlement, would inordinately delay the adjudication for the mother's post-judgment divorce enforcement application. This delay would harm the children, whose financial needs had to be met now, rather than at some future time after their parents' disputes had been settled. Not only did this circumstance militate against permitting joinder, but the mother's action and the application for a declaration that the children were emancipated did not share common questions of law or fact. For these reasons, the court denied the father's motion for joinder.

Children Must Move, So Court Turns to Technology

Financial reasons dictated a mother be permitted to move with her children away from their father, but to alleviate the hardship of the separation, the court ordered the mother to set up a Skype account to allow the children to speak frequently with and see their father over the Internet. Baker v. Baker, 29610-2007, NYLJ 1202464436957, at *1 (Suffolk Cty. Sup., Aug. 4, 2010) (Garguilo, J.).

Pursuant to a stipulation of settlement, the mother had custody of the couple's two children, while the father was given five hours of supervised visitation with them each week. The visits were supervised because of the father's admitted alcoholism; however, when they entered into the stipulation, the parties intended that the father's visits would become unsupervised once he conquered his addiction. Since then, the father has completed an alcohol rehabilitation program and has proved his sobriety.

Because the mother had lost her job and could not find another, she sought court permission to move with her children to her parents' home in Florida, where she would have a chance to look for work while receiving their support. The father opposed the move, saying that he wanted to see his children on a regular basis. The court found that the move was warranted due to financial necessity, but it allowed the move only conditionally. One of those conditions was that the mother “at her own cost and expense ' see to it, prior to re-location, that the [father], as well as the children, are provided the appropriate Internet access via a Skype device which allows a real time broadcast of communications between the [father] and his children.” The mother was tasked with making the children available for a Skype-enabled visit three times per week, for at least one hour per session. In addition, once she finds work it will be her responsibility to pay for the children's transportation when they visit their father in New York.

Fed Court Will Not Second-Guess Family Court

The U.S. District Court for the Eastern District of New York declined to hear a suit brought by an unhappy father against Family Court, finding that because states and their agencies are protected by the doctrine of sovereign immunity under the Eleventh Amendment it could not entertain the action. Charleston v. New York State Family Court, Slip Copy, 2010 WL 3463135 (E.D.N.Y.).

The court permitted the plaintiff to appear pro se, following his request to proceed in forma pauperis. He did so, presenting a claim against Family Court claiming that court unfairly removed his children from their mother's care for medical neglect when in fact they suffered only from eczema. He asserted the defendant had “been practicing cruel and unusual punishment” and he requested award of monetary damages. The court found that the 11th Amendment to the U.S. Constitution prohibited it from hearing the case. In addition, even if not barred by the 11th amendment, the court would have declined to take the case because state courts, not federal, are more suited to determining family issues. Finally, the court certified, pursuant to 28 U.S.C. ' 1915(a)(3), that any appeal would not be taken in good faith and that, therefore, in forma pauperis relief would be denied to the plaintiff should he attempt to appeal the matter further.

Too Late to Remedy Court's Mistake

The Appellate Division, Second Department, affirmed the dismissal of a child custody action although the dismissal was not warranted at the time it occurred, because in the intervening year and half the child's contacts with the State of New York had become insignificant, and the State of Connecticut had exercised jurisdiction in the matter. Wnorowska v. Wnorowski, 2010 WL 3419266 (2d Dept., 8/31/10)(Fisher, J.P., Dickerson, Eng and Belen, JJ.).

In November 2008, Family Court, Kings County, dismissed a petition to modify its prior order in a matter concerning child visitation, finding that Connecticut, to which the child had been taken by the father, was the more convenient forum. Between that time and the time that this appeal was heard, a Connecticut Superior Court entered a judgment of divorce awarding custody of the child to the father and “reasonable,” but unspecified, visitation to the mother.

In accordance with the Uniform Child Custody Jurisdiction and Enforcement Act, codified in Article 5-A of the Domestic Relations Law (DRL), New York courts that have made an initial custody determination have exclusive continuing jurisdiction over that determination, unless jurisdiction should be relinquished because the child no longer has a significant connection to New York and “substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships” (DRL ' 76-a(1)(a)). In this case, the mother's modification petition was made just three months after the child was moved to Connecticut, so at that time it retained substantial ties with the child and should have exercised its continuing jurisdiction. (Even if exercise of jurisdiction is still lawful, a court may decline to exercise for reasons of forum non conveniens; however, here, the Second Department found that, at the time the matter was dismissed, Family Court was not an inconvenient forum.)

As a Connecticut court had already handled the divorce and custody issues in this matter, its decisions were entitled to receive full faith and credit in New York. Therefore, although Family Court erred in relinquishing jurisdiction, its order must be affirmed due to the lapse of time and the occurrence of subsequent events.