Can New York State Retain Jurisdiction In a Child Custody Modification Case Where Neither Parent Continues to Reside There?

Both parents lived in New York with their child.  When the relationship broke up, the custodial parent remained residing in New York, and the the non-custodial parent relocated to another state.  The non-custodial parent commences a proceeding in a New York Family Court because the custodial parent and the child reside there.  While the proceeding for modification of custody is pending in New York, the custodial parent relocates to another state as well.  The question is whether New York has lost continuing exclusive jurisdiction over this proceeding, because neither of the parents, nor the child, currently reside in New York. In addition, even if New York  were to determine that it lost continuing exclusive jurisdiction, does it continue to have jurisdiction under DRL §76(1)(b)(i-iii) and (d) (Initial Child Custody Jurisdiction).

Point I

Jurisdiction is Fixed as of the Date of the Commencement of the Modification Proceeding.

There is no doubt that the New York Court had exclusive continuing jurisdiction when the non-custodial parent filed their modification proceeding in New York because the custodial parent filed papers admitted residing in the State of New York at the time.

The custodial parent’s subsequent unilateral move after that date did not divest this Court of that exclusive jurisdiction, merely because the custodial parent elected to move with the child from New York.  Jurisdiction is fixed as of the date of the commencement of the modification proceeding, and the fact that a parent moves out of the State after the date of commencement does not defeat continuing exclusive jurisdiction.  J.N. v. S.S.F. 70 Misc.3d 1075 (Fam. Ct., Nassau Co. 2020)(Singer, J) (the case is attached for the Court’s ready refeence)..

In the J.N. v. S.S.F case, supra, the Father attempted to divest the Court of jurisdiction over a violation petition brought against him by the out-of-State Mother (with whom the child resided).  In denying the Father’s motion to dismiss the Mother’s petition, and holding that :

“the Court finds that is has not been divested of its continuing and exclusive jurisdiction with respect to the mother’s February 2020 Violation Petition”. (Emphasis added)

The Court’s reasoned as follows:

“Likewise, the father relocating his residence from New York to N.J. did not divest this Court of jurisdiction over the mother’s February 2020 Violation Petition, as the relocation occurred in October of 2020, well after she filed her petition. (See, DRL §§ 76-a and 76-b; Matter of Guzman, 92 A.D.3d at 680, 938 N.Y.S.2d 195 [2d Dept. 2012]; Prof. Merril Sobie, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, 2012 Electronic Update, DRL § 76-b (the petition filing date controls when determining whether there is jurisdiction under the UCCJEA); Uniform Child Custody Jurisdiction and Enforcement Act, 1997, National Conference of Commissioners on Uniform State Laws, Comment to Section § 202 [“Jurisdiction attaches at the commencement of a proceeding. If State A had jurisdiction under this section at the time a modification proceeding was commenced there, it would not be lost by all parties moving out of the State prior to the conclusion of proceeding”]).

Guzman v Guzman, supra, was a Second Department case, in which the out-of-State mother had commenced a modification proceeding in Family Court, Queens County, seeking to modify the custody and visitation provisions of a 2008 Florida judgment of divorce, which awarded the Father primary residential custody of the child.  Both the Father and child resided in New York, when the Mother’s proceeding was commenced in New York of a Florida.  Before a determination was made by the New York court, the Father move himself and the child to Florida, and moved to dismiss the Mother’s pending proceeding on the ground that New York had lost jurisdiction.  The Family Court, Queens County granted the Father’s motion, and the Appellate Division reversed.

In its reversal of the lower court, the Second Department stated:

 “At the time the mother commenced this modification proceeding in November 2009 (see Matter of Andrews v. Catanzano, 44 A.D.3d 1109, 844 N.Y.S.2d 147; Matter of Rey v. Spinetta, 8 A.D.3d 393, 777 N.Y.S.2d 746), the Family Court, Queens County, had jurisdiction over it pursuant to Domestic Relations Law § 76–b, based on the fact that the parties and the subject child lived in New York, and none of them had resided in Florida for over a year (cf. Matter of Saunders v. Hamilton, 75 A.D.3d 1172, 904 N.Y.S.2d 856; Matter of Calvo v. Herring, 51 A.D.3d 916, 858 N.Y.S.2d 731). Further, the subject child was enrolled in school in New York, her sister had resided in New York with the mother since 2007, the father had commenced a proceeding in New York to modify the custody provisions of the Florida judgment of divorce with respect to the sister, and the Family Court, Queens County, had obtained a forensic study of the parties for use in that proceeding. Therefore, the parties and the subject child had significant connections with this State, and it appears that “substantial evidence [was] available in this state concerning the child’s care, protection, training, and personal relationships” (Domestic Relations Law § 76[1][b] [ii] ). Accordingly, New York had jurisdiction to modify the custody and visitation provisions of the parties’ Florida judgment of divorce with respect to the subject child. (Emphasis added).

See also, Matter of Andrews v. Catanzano, 44 A.D.3d 1109, 844 N.Y.S.2d 147 (3d Dept. 2007) (UCCJEA proceeding is commenced upon the filing of the first pleading, not the date of service (Domestic Relations Law § 75–a [5]); New York Family Court proceeding had priority over the subsequent proceeding commenced by the father in North Carolina.)

Point II

The Loss of Continuing Exclusive Jurisdiction Does Not Divest This Court of Jurisdiction Altogether

Even if the New York Court were to determine that it had lost continuing exclusive jurisdiction, it could still exercise jurisdiction under DRL §76(1)(b) or (d).  Matter of Rey v. Spinetta,8 A.D.3d 393, 777 N.Y.S.2d 746 (2d Dept. 2004)(the Family Court had jurisdiction to hear the mother’s petition for modification pursuant to Domestic Relations Law § 76–a(2), since it would have had jurisdiction for an initial child custody determination under Domestic Relations Law § 76(1)(d)).

The Commentary to DRL §75-b clearly sets forth the “road map” for the court, when it determines that it does not have continuing exclusive jurisdiction under that section.  That Commentary provides:

“If the state which issued the initial decree does not possess exclusive, continuing jurisdiction, or, alternatively, declines jurisdiction to modify based on a statutorily enumerated ground, the analysis shifts back to Section 76, i.e. the “new” court may take jurisdiction only if a Section 76 basis is established. That is the inevitable Section 76-b result. … Section 76 provides the sheet music for initial jurisdiction, and is heavily weighted toward home state jurisdiction (see the Commentary following Section 76). In other words, in the absence of exclusive, continuing jurisdiction the home state of the child on the date a modification action is filed becomes paramount (or the state which was the home state within the preceding six-month period). That state and only that state may exercise modification jurisdiction, unless the relevant home state court declines pursuant to Section 76-b’s provision regarding forum non convene. In the absence of both a) exclusive, continuing jurisdiction, and b) home state jurisdiction, the Court must turn to one of alternative Section 76 bases, such as the absence of any other state’s jurisdiction. And under Section 76-a(c) a court which has made an initial custody determination, but has lost exclusive, continuing jurisdiction, is placed in the same boat as every other state. It can assume jurisdiction only if the Section 76 criteria are satisfied.”

Even if the New York Court determines it does not have continuing exclusive jurisdiction, it will still maintain jurisdiction over the matter under DRL §76.

DRL §76-a(2) (Continuing, exclusive jurisdiction) specifically provides:

“A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section seventy -six [76] of this title”

Section 76(1)(b) (Initial child custody jurisdiction) provides that a court of this State will have jurisdiction, if:

“(b) a court of another state does not have jurisdiction under paragraph (a) of this subsection …, and

(i) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and 

(ii) substantial evidence is available in this state concerning the child’s care, protection, training and personal relationships”

All of those factors are present under this set of facts.  No other state has jurisdiction of the modification proceeding, because the home state of the child remains New York.  Moreover, there is clearly substantial evidence in New York  regarding the child’s care and training, particularly its schooling, medical records and the personal relationships the child would have  developed over the past years of its life in New York State. The child would only have spent a short time in the new State. 

Section 76(1)(d) further provides that a court of this State will have jurisdiction, if:

“( c) no court of any other state would have jurisdiction under the criteria specified in paragraph (a), (b) or ( c) of this subdivision.”

As stated above, as long as New York  State remains the home state of the child, no other State would have jurisdiction over any custody matter involving (except emergency jurisdiction under DRL §76-c (Temporary emergency jurisdiction).