Decisions of Interest

On the father's petition, Family Court issued a Writ of Habeas Corpus requiring the mother to bring the child to the New York court in August 2010. On the appointed date the mother appeared, but did not produce the child. A second order was issued. Soon thereafter, the father petitioned Family Court for custody, and the mother cross-petitioned for the same. Prior to filing her cross-petition, however, the mother sought a custody determination from a Ukrainian court. That court granted custody to the mother after determining, in accordance with Ukrainian law, that the child's place of residence was Ukraine. A Ukranian appellate court confirmed that ruling as well as the child's custody determination.

With these rulings in hand, the mother moved Family Court, Kings County, for dismissal of the father's petition based on lack of jurisdiction, due to her contention that New York is not the child's “home state.”

Under the UCCJEA, subject matter jurisdiction to adjudicate a child custody dispute exists when the forum in which the litigation is to proceed is the child's home state (Domestic Relations Law (DRL) ' 75-d). “Home state” means the state in which the child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding (DRL
' 75-a, subd. 7). A person acting as a parent is a person who has physical custody of the child and who has been awarded legal custody by a court or claims a right to legal custody (DRL ' 75-a, subd. 13).

The father countered that, although his child had not lived in New York for the requisite jurisdictional six-month period prior to his custody filing, New York should nonetheless had jurisdiction over the matter because neither parent lived in Ukraine with the child after 2008. Thus, he argued, the child had no “home state.”

The court disagreed with the father, stating, “This case fails to pass muster under the 'home state' analysis, because the subject child did not reside in New York but in the Ukraine six months prior to the father's filing of the petition for custody in this court. Contrary to the father's contentions, the fact that the child lives in the Ukraine and not in New York, where he resides, or New Jersey, where the mother resides, is not an automatic prescription for a finding that the child has no 'home state.' In keeping with the 'home state' definition, the subject child's home state would be the Ukraine if her mother or the maternal grandfather and aunt claim a right to legal custody.”

Additionally, the court stated it would not exercise jurisdiction over the matter based on best interests grounds, even though New York courts may do so if “(1) the child and parents, or at least the child and one parent, have a significant connection with the state, and (2) there is substantial evidence available within the state concerning the child's care, protection, training, and personal relationships ((DRL ' 76-b).” Here, the child had never resided in New York, but had lived and been educated for most of her life in Ukraine. “Consequently,” the court concluded, it was not in the child's best interests to have the matter decided here because “there is no evidence in New York concerning her care, protection, training, and personal relationships.”

Ukraine Is the Right Forum for Custody Determination

Family Court, Kings County, agreed with a mother that the court lacked jurisdiction to decide the issue of custody of the parties' child, as the father resides in New York, the mother in New Jersey, and the child in Ukraine. Serihy M. v. Olena O. M., 26320/10, NYLJ 1202534078207, at *1 (Fam., KI, Decided Nov. 7, 2011).

The parties were married in Ukraine, and their daughter was born there in 1997. In 1998 the father moved to New York to work, while the rest of the family remained behind. The family lived apart for 10 years, with only two brief attempts at living together in New York. After the second reunification attempt failed, the mother and child moved back to Ukraine. The parties were divorced in that country in 2008. Also in 2008, the mother moved to New Jersey to work as a nanny, leaving the child behind in the care of her maternal grandfather and aunt. The girl now lives and attends school in Ukraine, and has been to the United States only on brief visits since 2008.

On the father's petition, Family Court issued a Writ of Habeas Corpus requiring the mother to bring the child to the New York court in August 2010. On the appointed date the mother appeared, but did not produce the child. A second order was issued. Soon thereafter, the father petitioned Family Court for custody, and the mother cross-petitioned for the same. Prior to filing her cross-petition, however, the mother sought a custody determination from a Ukrainian court. That court granted custody to the mother after determining, in accordance with Ukrainian law, that the child's place of residence was Ukraine. A Ukranian appellate court confirmed that ruling as well as the child's custody determination.

With these rulings in hand, the mother moved Family Court, Kings County, for dismissal of the father's petition based on lack of jurisdiction, due to her contention that New York is not the child's “home state.”

Under the UCCJEA, subject matter jurisdiction to adjudicate a child custody dispute exists when the forum in which the litigation is to proceed is the child's home state (Domestic Relations Law (DRL) ' 75-d). “Home state” means the state in which the child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding (DRL
' 75-a, subd. 7). A person acting as a parent is a person who has physical custody of the child and who has been awarded legal custody by a court or claims a right to legal custody (DRL ' 75-a, subd. 13).

The father countered that, although his child had not lived in New York for the requisite jurisdictional six-month period prior to his custody filing, New York should nonetheless had jurisdiction over the matter because neither parent lived in Ukraine with the child after 2008. Thus, he argued, the child had no “home state.”

The court disagreed with the father, stating, “This case fails to pass muster under the 'home state' analysis, because the subject child did not reside in New York but in the Ukraine six months prior to the father's filing of the petition for custody in this court. Contrary to the father's contentions, the fact that the child lives in the Ukraine and not in New York, where he resides, or New Jersey, where the mother resides, is not an automatic prescription for a finding that the child has no 'home state.' In keeping with the 'home state' definition, the subject child's home state would be the Ukraine if her mother or the maternal grandfather and aunt claim a right to legal custody.”

Additionally, the court stated it would not exercise jurisdiction over the matter based on best interests grounds, even though New York courts may do so if “(1) the child and parents, or at least the child and one parent, have a significant connection with the state, and (2) there is substantial evidence available within the state concerning the child's care, protection, training, and personal relationships ((DRL ' 76-b).” Here, the child had never resided in New York, but had lived and been educated for most of her life in Ukraine. “Consequently,” the court concluded, it was not in the child's best interests to have the matter decided here because “there is no evidence in New York concerning her care, protection, training, and personal relationships.”