Swain v. Vogt

Crew III, J. Appeal from an order of the Family Court of Tompkins County (Friedlander, J.), entered May 20, 1993, which, in two proceedings pursuant to Family Court Act article 6, dismissed petitioner’s applications to, inter alia, hold respondent in violation of a prior order of visitation. The parties to these proceedings have one child, Brandon, born in January 1989. By stipulation and order entered August 14, 1990, it was determined, inter alia, that respondent would have custody of Brandon and that she would not relocate with him outside of Tompkins County without petitioner’s express written permission. The stipulation and order further provide that upon disagreement between the parties, either may petition Family Court for a review of visitation de novo. It is undisputed that on or about May 10, 1991, respondent left New York with Brandon and relocated in Maine without petitioner’s permission or modification of the order and stipulation. Respondent claims that such relocation was necessary for her own safety and Brandon’s safety because petitioner was physically and emotionally abusing them. Within days of respondent’s departure from New York, petitioner filed petitions with Family Court charging that respondent violated the custody order and seeking custody of Brandon. These proceedings, however, were adjourned to procure personal service on respondent inasmuch as the summonses mailed to her were returned to Family Court and she did not appear on the initial court date. Although Family Court directed petitioner’s counsel to file an order embodying this determination, that was never done. In February 1992 and April 1992, respectively, petitioner again filed petitions with Family Court seeking custody of Brandon and charging that respondent violated the custody order. As a result of the summonses mailed to respondent being returned, Family Court ordered, inter alia, that respon [704] dent be personally served and that her failure to appear would result in the transfer of custody to petitioner. Respondent ultimately answered and cross-petitioned for custody in June 1992, although never personally appearing before Family Court. In July 1992, respondent filed custody proceedings in Maine. Thereafter, in September 1992, respondent moved to dismiss petitioner’s petition for custody on the ground that Family Court lacked jurisdiction, which was denied. In its decision, however, Family Court expressly noted that an inquiry into the proceedings commenced in Maine was necessary before conducting a hearing in this matter. By letter dated January 22, 1993 from petitioner’s counsel, Family Court was apprised of the status of the Maine proceedings. By order dated May 14, 1993, Family Court, sua sponte, dismissed the petitions. This appeal by petitioner ensued. Initially, it must be noted that Family Court’s order dismissing the petitions fails to provide the parties or this Court with the benefit of an explanation for its order. Notwithstanding, the record before us reveals that, pursuant to Domestic Relations Law article 5-A, Family Court properly dismissed the petitions. It is axiomatic that Family Court, having not yet made a decree concerning custody in this case, may decline to exercise its jurisdiction if it finds that it is an inconvenient forum to make a custody determination and that Maine is a more appropriate forum (see, Domestic Relations Law § 75-h [1]) and such finding can be made sua sponte (see, Domestic Relations Law § 75-h [2]). This issue, of course, only arises when the court possesses jurisdiction under Domestic Relations Law § 75-d. Here, it is noteworthy that petitioner concedes that Family Court has jurisdiction in this case. Thus, the only issue presented is whether Family Court abused its discretion in dismissing the petitions. Domestic Relations Law § 75-h (3) sets forth the factors which must be considered in determining whether New York or Maine is the appropriate forum to litigate these proceedings. In analyzing these factors, we are of the opinion that it is in the best interest of Brandon for this State to decline jurisdiction on the ground that Maine is the more appropriate forum (see, Domestic Relations Law § 75-h). Although petitioner’s alacrity in bringing the initial petition for custody resulted in Family Court’s determination that, for jurisdictional purposes, New York is Brandon’s home State, the record [705] before us reveals that Brandon does not presently live in New York (see, Bloomfield v Bloomfield, 170 AD2d 884, 886; Steinman v Steinman, 80 AD2d 892, 893); rather, Brandon, now five years old, has lived in Maine with respondent for over three years. Moreover, respondent has always had sole custody of Brandon and averred that he has adjusted well in Maine and enjoys a loving and caring environment there. Furthermore, although not condoning respondent’s removal of Brandon from New York without petitioner’s express permission, her averments that she removed Brandon from New York because petitioner was physically abusing both her and, more importantly, Brandon are pertinent and cannot be ignored (cf., Matter of Grover v Grover, 144 AD2d 852, 853). Indeed, in March 1990, respondent successfully obtained a permanent order of protection against petitioner. Under these circumstances, we are of the opinion that there is substantial evidence that Brandon’s "present [and] future care, protection, training, and personal relationships [are] more readily available [in Maine]” (Domestic Relations Law § 75-h [3] [c] [emphasis supplied]; see, Matter of Clarke v Clarke, 124 AD2d 379), and that Maine has a closer connection with Brandon (see, Domestic Relations Law § 75-h [3] [b]) and " 'optimum access to relevant evidence’ ” (Vanneck v Vanneck, 49 NY2d 602, 610 [citation omitted]). Consequently, we conclude that Brandon’s best interest will be served if Maine assumes jurisdiction and renders a determination with respect to custody (cf., Domestic Relations Law § 75-i). Petitioner asserts that this Court should not reward respondent for interfering with his visitation with Brandon. While we recognize that the policy considerations for discouraging absconding with a child are compelling, these imperatives must be subordinated to the best interest of Brandon (see, Matter of Van Houten v Van Houten, 156 AD2d 694, 697). Deterring abductions and unilateral removals of children is but one of the goals of Domestic Relations Law article 5-A (see, Domestic Relations Law § 75-b [1] [e]). Its purpose also includes, inter alia, "discouraging] continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child” (Domestic Relations Law § 75-b [1] [d]) and "assuring] that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this state decline [706] the exercise of jurisdiction when the child and his family have a closer connection with another state” (Domestic Relations Law § 75-b [1] [c]). We must remain vigilant that the ultimate issue here is what is in Brandon’s best interest, not whether respondent should be punished for her actions (see, Matter of Nehra v Uhlar, 43 NY2d 242). Furthermore, evidence of respondent’s conduct in this regard is certainly a factor that petitioner can place before the Maine courts and thus be taken into account in Maine’s ultimate resolution of the issues. The record does not indicate, however, that Family Court communicated with the Maine courts in order to assure that jurisdiction will be exercised and that a forum will be available to the parties (see, Domestic Relations Law § 75-h [4]). We, therefore, remit the matter to Family Court to resolve this issue. Mikoll, J. P., Mercure and Yesawich Jr., JJ., concur.