IN RE: a Custody and Family Offense Proceeding Under Articles 6 and 8 of the Family Court Act Sarah W. (2024)

NOTICE: YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER A COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL FOR A TERM NOT TO EXCEED SIX MONTHS FOR CONTEMPT OF COURT.

NOTICE: PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILDREN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

Petitioner Sarah W. (hereinafter "the mother") and Respondent Andrew W. (hereinafter "the father") are the parents of the subject child (date of birth:

XX/XX/20) (hereinafter "the child"). This is a proceeding pursuant to Family Court Act Articles 6 and 8. This action commenced with the mother's filing of a custody petition by order to show cause and a family offense petition on February 5, 2024. Three days earlier, on February 2, 2024, the mother had been served with a custody petition that the father had filed with the Bristol Probate and Family Court in the Commonwealth of Massachusetts.

Throughout the winter and spring of 2024, Hon. Scott A. Miller and Hon. Susan Jacobs of the Massachusetts court held several brief informal scheduling conferences. On April 17, 2024, both parties appeared with counsel, and the Attorney for the Child appeared on behalf of the child before this Court. On June 27, 2024, an evidentiary hearing on the issue of UCCJEA subject matter jurisdiction was held by this Court with all parties and counsel present. The hearing was limited to the nature and duration of family's sailboat trip to Central America - both planned and actual - and the parties' intended domicile upon return. The Court heard testimony from both parties.

FINDINGS OF FACT

The parties were never married. They share one child, the subject child, who was born on XX/XX/20, in New Bedford, Massachusetts. At the time, the mother had an apartment and was living in New Bedford. From the child's birth until September of 2021, the parties and child lived together with the father in his condominium in Rhode Island. In September of 2021, the parties separated, and the mother and child moved back to New Bedford, Massachusetts. In the Spring of 2022, the parties reconciled, however the mother and child continued to maintain their residence at the mother's apartment in Massachusetts while the father continued to maintain his residence at his condominium in Rhode Island. It is undisputed that the mother and child lived in Massachusetts from September of 2021 until April of 2023.

Both parties are commercial fishers by trade. In October of 2022, the father's commercial ship llided with another vessel causing the father's boat to sink. As a result, the father obtained a $400,000 insurance settlement. The parties began to discuss using some of those funds to purchase a sailboat to take on a leisurely excursion through the Panama Canal, "enjoying the lifestyle." The father found and ultimately purchased a sailboat in Mexico.

To prepare for the trip, the parties sold, donated, and gave away most of their belongings including furniture, winter clothing, and toys that the parties had in both Massachusetts and Rhode Island. They filled a Toyota SUV with possessions and left the vehicle at the father's parents' home in Massachusetts. The mother ended the lease to her apartment in Massachusetts. In early April of 2023, the parties and child departed for Mexico in a Jeep filled with items to be used on the sailboat. Once they arrived, they left the Jeep behind in Mexico and set sail on their trip.

The parties sailed along the coasts of Mexico, El Salvador, and Costa Rica before losing their propeller off the coast of Panama in late July or early August of 2023. They navigated to a marina, pulled the boat out of the water, and leased an apartment in Panama, where they remained until December. First, the father flew back to New England in order to take care of some business. This included (1) selling his Rhode Island condominium which had been largely destroyed in a flood and (2) signing a contract to purchase a new fishing vessel which the parties planned to use to fish to earn income upon their return from the sailboat trip. A few weeks later, the mother and child joined the father in Massachusetts, flying into Boston on December 19, 2023. The parties had planned their trip to coincide with Christmas so that the father's parents, who also live in Massachusetts, could spend the holiday with the child. The parties stayed at an Airbnb and hotel for a combined total of ten days.

On December 29, 2023, or December 30, 2023, the mother took the child to visit her sister in Ithaca, New York. The parties' stated plan was that the mother and child would return from the Ithaca visit after a week or so and then the family would return to Panama in January of 2024 to finish the sailing trip. However, the mother testified that she no longer felt safe with the father due to "many incidents" of angry and erratic behavior that had occurred over the preceding months. The mother gave one example of the father speeding with the mother and child in the car in Panama resulting in the family getting pulled over by Panamanian police. She gave a second example of the father speeding with the mother and child in the car while the family was in Massachusetts in December of 2023. She testified that she feared him and that she expressed to him that she was afraid he was going to hit her. She alleged that he responded, "It

seems like you want me to." As a result of these incidents, the mother decided in late December of 2023 that upon her departure to Ithaca, she and the child would not return to Massachusetts. However, she did not communicate her intention to the father at that time. Instead, on January 3, 2024, the mother called the father from Ithaca and told him she intended to remain in New York.

That same month, the mother obtained New York health insurance for the child whose Massachusetts health insurance had lapsed in April of 2023 during the sailboat trip. No other health insurance had been obtained for the child in the interim. Just before leaving for the trip, the child had undergone an evaluation in Massachusetts and was diagnosed with an unspecified neurological disorder and autism. The mother communicated to the evaluator that she believed the resources in Stoughton, MA were superior to those in New Bedford, MA for meeting the child's special needs, evincing an intent to remain in Massachusetts long-term.

Notwithstanding the child's diagnoses, the mother planned to home-school the child when she became school aged, only realizing later, when the child neared the age of four, that the child needed more help than the mother alone could provide.

The key area where the parties differed in their testimony was the planned duration of the sailboat trip and their intended domicile upon return. The mother claimed that the sailboat trip was of indefinite duration and that the parties had some "loose plans" to return to the United

States to "make some money" but that they "did not have a date." The mother, however, was inconsistent in her testimony, at one point conceding they were "shooting for" an April 2024 return date while at another point replying in the affirmative when asked whether the family was going to live on the sailboat "forever." The mother further testified that upon their ultimate return to the states, the parties' plan was to fish off the coast of Massachusetts, Rhode Island, or the Carolinas, that she and the father had discussed all three options, and that they had no preference for any of those choices above the others. She explained that the father had a federal fishing permit which allowed him to fish in federal waters more than three miles off the U.S. coast.

The father, on the other hand, testified that the parties specifically planned to fish from a Massachusetts homebase using the fishing boat he had purchased in Massachusetts upon their return to the states. With the sale of his Rhode Island condominium and the newly purchased fishing boat remaining docked in Massachusetts, the father, like his own parents, was now primarily located in Massachusetts. The father credibly denied that the parties ever discussed living in the Carolinas. He also credibly testified that, upon their reconciliation in 2022, the mother expressed to him that she did not like living in Rhode Island. She told him she was raised in Rhode Island and did not want to be there anymore. She told him she wanted to live in Massachusetts.

The father further testified that the outer limit for the duration of the trip was one year because the parties did not have unlimited funds to support their excursion indefinitely. He estified that his settlement "wasn't a big windfall" and that the mother was aware of that. He also did not wish to spend all his money on the trip. The planned itinerary was that the parties would travel from Mexico back to Massachusetts via the Panama Canal, and that the trip would conclude by April of 2024. Here, the Court finds that the father was credible and the mother was not credible. The Court accepts the father's testimony that the parties planned to return to the Commonwealth of Massachusetts no later than April 2024.

CONCLUSIONS OF LAW

Under the UCCJEA, the "home state" is the state that has jurisdiction to make an initial custody determination. The "home state" is "the state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding * * * A period of temporary absence of any of the mentioned persons is part of the period." Domestic Relations Law § 75-a(7). See also Arnold v. Harari, 4 AD3d 644, 646 (3rd Dept. 2004). A "period of temporary absence" is not defined in

the UCCJEA.

The Third Department has adopted an intent analysis when determining whether the parties intended an absence from the home state to be merely a "temporary absence." See, Arnold v. Harari, infra. "A review of the Appellate Division case law in New York on the issue of 'temporary absence' as it relates to establishing the six (6) month requirement for 'home state' jurisdiction reveals a focus on whether or not the parent seeking to establish 'home state' jurisdiction in New York engaged in conduct evidencing an intent to change residency (see generally Felty v. Felty, 66 AD3d 64, 882 N.Y.S.2d 504 [2 Dept. 2009]; see also Arnold v.

Harari, 4 AD3d 644, 772 N.Y.S.2d 727 [3 Dept. 2004]." M.G. v. C.M., 55 Misc 3d 1223(A) at *5. In determining whether a party's conduct evidenced an intent to change residency, courts may consider the party's statements as well as any changes made to permanent address, driver's license, professional license, and/or voter registration. See Felty, supra, at 70-71.

Here, it is clear the parties mutually intended for the family's sailboat trip to Central America to be temporary. The father maintained that the parties planned to conclude their trip no later than April of 2024, and the Court found him to be credible. Indeed, the parties did not have unlimited funds to support their excursion ad infinitum. The father's testimony was corroborated by the fact that he purchased a new fishing vessel in December of 2023 for the parties to use to earn income upon their return. The Court did not find the mother to be credible in her claim that the trip was indefinite. She was inconsistent in her testimony, at one point claiming they would live on the sailboat "forever," yet at another point stating they were "shooting for" an April 2024 return, thus corroborating the father's testimony.

Further, both parties intended to return to Massachusetts at the conclusion of the trip.

Again, the Court found the father's version of their plan to be the more credible. The father sold his Rhode Island condominium and purchased a fishing vessel in Massachusetts. The father's parents were rooted in Massachusetts, and the parties had left a vehicle and some belongings with them. The child's health insurance had always been through Massachusetts until its lapse in April of 2023; the child never had health insurance through any other state until the mother obtained New York health insurance in January of 2024. Prior to the trip, the parties had obtained an evaluation for the child in Massachusetts. The mother's statements to the child's evaluator regarding her preference for services in Stoughton, Massachusetts support that the parties planned to return to Massachusetts to live. Finally, the mother's statements to the father about her desire to live in Massachusetts provide further corroboration. Applying the "intent" test utilized by the New York courts, it is clear that Massachusetts was at all times the "home state" and that the family's sailboat trip to Central America was merely a "temporary absence"

under the UCCJEA. As such, if the Massachusetts Court agrees that Massachusetts is the child's "home state," the New York Article 6 custody petition must be dismissed due to lack of subject matter jurisdiction.

ORDERED that this Decision and Order shall be immediately transmitted to the Hon. Susan L. Jacobs and the required UCCJEA judicial conference will be scheduled upon notice to all parties and counsel.

Dated: July 11, 2024

Ithaca, New York

Hon. Scott A. Miller

Tompkins County Family Court Judge

Scott A. Miller, J.