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Integrated Domestic Violence Court…cont

This case raises two questions concerning application of the recently enacted Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), set forth at article 5-A of the Domestic Relations Law: (1) whether (as the father urges) title 3 of that act requires this court to enforce a custody order issued by a court in the Dominican Republic, or (2) whether (as the mother and law guardian contend) this court may assume jurisdiction of the parents’ custody dispute and modify or replace the Dominican court’s order. After consultation with the original judge, consideration of the parties’ residence status, and in light of allegations of an extensive history of domestic violence that were not presented to the Dominican court before its default order of custody was entered, this court assumes jurisdiction and sets the matter for trial.

Determination whether this controversy should remain with this court or be returned to the originating court in the Dominican Republic is governed by the recently enacted Uniform Child Custody and Jurisdiction Enforcement Act, effective April 28, 2002 and replacing the former “Uniform Child Custody and Jurisdiction Act” (UCCJA). Set forth at article 5-A of the Domestic Relations Law, this statutory scheme is designed to eliminate jurisdictional competition between courts in matters of child custody. Jurisdictional priority, under the UCCJEA, is always conferred to a child’s “home state.”

The legislative history of the UCCJEA establishes that domestic violence was very much on the minds of the drafters of the statute. While earlier laws had often presumed that the party fleeing the jurisdiction with children was the wrongdoer, experience showed that it was often a victim of domestic violence who sought protection in another jurisdiction. One important purpose of the UCCJEA was to bring that area of law into conformity with the Parental Kidnaping Prevention Act (28 USC § 1738A) and the “full faith and credit” requirements of the Violence Against Women Act. Domestic violence injury is also a factor to be considered when determining whether to retain jurisdiction in the United States in an international custody case under the International Parental Kidnaping Act, and can support refusal to repatriate a child.

New York State, in particular, went beyond the language proposed by the NCCUSL drafters of the UCCJEA, enacting additional provisions that confer special protection for victims of domestic violence. In a statement of legislative intent that introduces the UCCJEA, the Legislature mandated that issuance and enforcement of child custody and visitation should be accomplished “in a manner that ensures that the safety of the children is paramount and that victims of domestic violence and child abuse are protected.”

Under title II of the UCCJEA, pursuant to a provision denying UCCJEA protection to a wrongdoer, a court cannot consider as a factor weighing against a party “any taking of the child, or retention of the child after a visit or other temporary relinquishment of physical custody, from the person who has legal custody, if there is evidence that the taking or retention of the child was to protect the party from domestic violence or the child or sibling from mistreatment or abuse.”

We now consider (1) whether the UCCJEA requires immediate enforcement of the Dominican custody decree (as the father urges) or (2) whether, as the mother contends, this court may assume jurisdiction of the dispute and determine whether modification of the Dominican order is appropriate.

Expedited enforcement of a child custody determination is available through Domestic Relations Law § 77-g (3), under title III of the UCCJEA. Title III sets forth the proper procedure for registration of out-of-state custody decrees. Once properly registered, a foreign decree will be treated as the equivalent of a decree of this state and, once registered, any further contest to the decree is precluded. The decree may be registered with a simultaneous request for enforcement. Notably, these procedures were not followed here. Instead, the father filed a writ of habeas corpus under article 6 of the New York State Family Court Act, seeking immediate return of the child pursuant to the Dominican custody decree. At the time the father’s writ of habeas corpus was first returnable, however, English language translations of the court documents were not available to this court. There could be no presumption that the Dominican personal injury court order was valid and enforceable. Before translations were obtained, the mother had filed her own petition for custody under article 6 of the New York State Family Court Act, raising serious allegations of domestic violence directed against herself and the children.

This court assumed temporary emergency jurisdiction in order to investigate further the domestic violence allegations.

Based on the presence of a criminal proceeding against the father, the filing of a new family offense petition, and the report of the law guardian that there was an extensive history of domestic violence in the family, this court stayed any enforcement proceedings until the underlying issues of domestic violence and the safety of the children could be resolved or a determination could be made that it was appropriate for this court to assume full jurisdiction of the matter.

Where, as here, there exists a custody order from another jurisdiction, it is incumbent that the temporary court contact the original court to “resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.” If the issuing court declines to retain jurisdiction because of significant connections between the child and the new state, the temporary court may assume permanent jurisdiction. That decision, however, is up to the original court, not the new.

This court assumes jurisdiction to modify the Dominican Republic custody order. As noted previously, under Domestic Relations Law § 75-a (11), “modification” does not necessarily mean a change in custody, only that this court’s order, whatever it may be, will replace that of the Dominican court. Any measures requested by the parties, pursuant to Domestic Relations Law §§ 75-i, 75-j, and 75-k, to ease the difficulties of litigating a matter with history in two far-flung jurisdictions, will be readily entertained by the court and, where appropriate, granted, with court staff assisting in any way possible to implement these procedures.

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