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#399 Third Department Caselaw Round-Up for July 5, Part 3 of 4

398 Post 07-05-12, Part 3 Third Department July.pngThe first case is an example of how courts generally jealously guard their jurisdiction and are rather loath to give it up. It is also a case with a rather complex fact pattern which, in turn, impinges upon various doctrines of law. Also, this case is an excellent example of why one should always give serious consideration to filing a motion to dismiss for lack of jurisdiction. Because if you fail to timely object to a court’s alleged lack of jurisdiction you just might find that your failure to object (or your belated objection) will, in and of itself, be construed as consent to the court’s jurisdiction. And you will then be stuck with the consequences of your failure to timely act, as happened in this particular case.

The second case perfectly illustrates that there is no such thing as an automatic stay in Article 6 family court matters. It also helps if one reads the applicable statutes.

398 Post-2 Saratoga County.pngCase #296 #513350
Belcher v. Lawrence
Saratoga Family-Hall Issues: Abuse; Best Interests; Custody; Divorce; Evidence; Jurisdiction; Neglect; Relocation; Visitation Cited statutes: DRL §75-a; 75-j; 76-a; 76-f; FCA Art. 6 REVERSED

The father and mother are the divorced parents of 2 children, a son and a daughter. In 2005, a New Hampshire court awarded the parents a judgment of divorce which granted the parties joint legal custody of their children with primary physical custody to the mother and liberal visitation to the father.

The father then relocated to New York.

In 2006, the father filed a petition in New York to modify the order of custody from the New Hampshire court. Interestingly, though the decision never mentions any word of this, it seems that the mother made a general appearance in New York and did not move to dismiss the petition on the grounds of lack of jurisdiction or forum non conveniens!

In 2007, the New York court then modified the New Hampshire order of custody by granting the father sole legal and physical custody of the son, left custody of the daughter with the mother, and scheduled visitation between the parents and the children. In other words, the New Hampshire order no longer exists, having now been (presumably) wholly superceded by the order modifying it, issued by a New York court.

Tricky, tricky! And guess what? This becomes a very big deal later on, as you might well imagine.

The mother then relocated to Virginia.

Now, even if the New Hampshire order still existed, New Hampshire no longer has any meaningful nexus with either child and either parent. But New York does, because New York’s modification of New Hampshire’s order now makes the order a New York order – and the father and the son still live in New York. Can you see where we are heading?

In 2011, the father filed a petition to modify the New York order of custody, alleging, among other things, neglect and acts of repeated physical abuse by the mother’s new husband against the daughter, with the father now seeking sole legal and physical custody of the daughter as well.

The court placed the daughter with the father under a temporary order of custody while the mother moved (far too late!) to dismiss the petition for lack of jurisdiction with regard to the daughter (apparently thinking that the New Hampshire order still existed!). After oral argument, the court granted the motion to dismiss for lack of jurisdiction with regard to the parties’ daughter.

The father appealed.

Not so fast says the Third Department, and reverses the court’s order. The Third Department then holds forth with legal arguments as to why the New York court “maintains exclusive continuing jurisdiction” over both parents and both children.

Why is this so? It all comes down to the fact that the New York court, when it originally modified the New Hampshire order of custody, presumably modified the entire order such that both custody and visitation were modified, not just custody alone. Had the New York court only partially modified the New Hampshire order, refusing to modify those aspects of the New Hampshire order pertaining to visitation of the daughter (then the New Hampshire order would still be in existence concerning the daughter and), then the New York family court would be correct that it lacked any jurisdiction as to any attempt at modification of the New Hampshire order with regard to the daughter, whether it pertained to custody or visitation.

Still with me on this? The Third Department then goes on to make a statement that I vehemently disagree with, claiming that the New York family court found that “the 2007 order did not constitute a child custody determination with respect to the daughter”. Nothing could be further from the truth! Why? It’s simple: since that court, in its 2007 order, determined visitation between the parents and the siblings, it inherently, and by default, also determined custody of the daughter. Think about it. If that order scheduled visitation, then visitation can only occur upon the presumption that the party doing the visiting is necessarily not the party who has custody. Thus, while the 2007 may not have directly determined custody of the daughter, it indirectly did so, with the effect of both ratifying the findings of the New Hampshire court and (since visitation with the daughter had been modified) thereby modifying the entire New Hampshire order out of existence.

So, not only does New York have jurisdiction here, in my opinion, it is the only state that should have jurisdiction here, since the New York order completely supercedes the New Hampshire order and the mother never acquired an order of custody for the daughter in Virginia. This falls under the ancient legal doctrine of nah-nah-nah-nah-NAH-nah!

Again: tricky, tricky!

In any event, the remainder of this decision addresses why New York has jurisdiction and why it should keep jurisdiction.

Case #297 #512691
Whiting v. Ward
Saratoga Family-Jensen Issues: Custody; Stipulation; Visitation Cited statutes: FCA Art. 6 Modified

In 2010, the unmarried parents of a daughter stipulated to an order of custody wherein they shared joint legal custody with primary physical custody of the child granted to the mother with liberal visitation to the father.

Later, in August 2010, the parties again stipulated to an order of custody that largely mirrored the prior order except with respect to an additional provision pertaining to the point where the parties were to exchange the child.

For whatever reason, the father appealed the August 2010 order.

Now, right off the bat, this order should be affirmed for a very simple reason: the father consented to the order via stipulation! This was not an order imposed on him by the court after a hearing on the merits. It was something that he had agreed to!!!!! Why on earth would the father appeal an order that was, but for one small provision, effectively the same order he had all along!? It makes no sense.

But, wait, it gets better.

While the father’s appeal was pending, the mother filed a modification petition seeking to change the visitation schedule – which she had just agreed to as well! What the hell? Not to be outdone, the father then filed 3 new petitions of his own, seeking to enforce the terms of the original order (the one that is precisely the same as the order he is appealing, but for a single provision!).

Oh, but wait, it gets even better.

So, what does the court do? In May 2011, it compounds the problem by dismissing all 4 of the new petitions, on its own motion, at the initial appearance, “stating that it was the court’s position not to entertain new petitions until an appeal has been determined by this Court because to do so would usurp the authority of the Appellate Division.” The court entered an order of dismissal and the father appealed from the May 2011 order as well.

And better …

To make matters even more convoluted, the parties apparently engaged in the filing of several more petitions while the appeal was pending, which resulted in the court issuing yet another order which addressed issues of custody and visitation. However, because none of the parties to the appeal ever bothered to supply a copy of the order to the Third Department in their respective briefs, the Third Department is therefore unable to make a determination as to whether either or both of these 2 appeals is moot (!!!!!).

Nevertheless, in a footnote (remember: ALWAYS read the footnotes!), the Third Department notes that the father withdrew his appeal from the August 2010 order. Thus, the only appeal before the court is as to the sua sponte dismissal of the 4 petitions, in the May 2011 order.

The Third Department makes quick work of the appeal in one sentence: “Family Court Act §1114(a) specifically provides that the filing of a notice of appeal from a family court order does not give rise to an automatic stay.” Period. And, just in case family court judges do not get the message, the Third Department made it very loud and clear: “In short, Family Court’s practice of declining to entertain Family Court Act article 6 petitions while an appeal is pending from an order entered pursuant to that article is without legal foundation.”

Also, as an aside, whenever you see the Third Department place a word or short phrase in quotations, it is usually the Third Department’s passive-aggressive way of stating “what the hell were you thinking!?” Yea, verily.