N.H., Plaintiff, v. M.H., Defendant. (2026)

The following supplemental papers were read on these motions following oral argument:

Plaintiff's Memorandum of Law in Support. 1

Defendant's Supplemental Affirmation 2

PRELIMINARY STATEMENT

This Court's Decision & Order dated August 24, 2026 on Plaintiff (Wife")'s application (Motion Sequence No. 01) and Defendant ("Husband")'s application (Motion Sequence No. 02), set this matter down for an immediate fact-finding hearing to be held on September 9, 2026 on the issue of jurisdiction including a determination of the home state of the parties' four minor children. On essentially the eve of the hearing, the Puerto Rican Court issued an Order dated September 4, 2026 in the Puerto Rico divorce on Wife's motion to dismiss for lack of jurisdiction finding, in relevant part, that the children's usual residence is Puerto Rico, and that under the laws of Puerto Rico, the Puerto Rican Court "has jurisdiction over matters of custody and parental relations concerning the minors" (NYSCEF Doc. No. 99 at p. 7). The Puerto Rican Court made its determination without holding a fact-finding hearing, and with knowledge that this Court's evidentiary hearing was imminent.

On September 9, 2026, counsel for both parties appeared and, upon application of Husband's attorney, this Court heard oral argument on the issue of whether the hearing should proceed as scheduled in light of the Puerto Rican's Court's Order issued one day before which determined that it is exercising continuing jurisdiction over the children. Following oral argument, counsel for the parties were directed to file supplemental briefs to address: (i) whether this Court should proceed with a hearing or dismiss this action or, in the alternative, stay this matter; and (ii) the legal implication of this Court issuing an Order that conflicts with the Puerto Rican Court's jurisdictional finding. Upon the oral record of September 9, 2026 and the parties' supplemental submissions, the Court's determination is as follows.

BACKGROUND

Puerto Rican Court's September 4, 2026 Order

While the Parental Kidnaping Prevention Act ("PKPA") analysis looks first to the provisions of the PKPA itself and then to the jurisdictional provisions of state law, the Puerto Rican Court did the inverse in that it first looked to the provisions of its own laws, and then to the provisions of the PKPA.

In analyzing jurisdiction under its own laws, the Puerto Rican Court found that "the evidence submitted by the parties to the Court shows that there are, at least, 2 jurisdictional grounds" satisfied under Puerto Rican law, to wit: (i) having in personam jurisdiction over Husband and Wife; and (ii) "[t]he minors are physically present in Puerto Rico and also have their usual residence here." The Puerto Rican Court continued, "[t]here is no dispute that, at the time this case was filed, the minors were in Puerto Rico" and that the evidence provided by Wife shows that three of the minor children were enrolled in pre-school in Puerto Rico for the current semester. Notably absent, however, was any analysis of the children's residence prior to Husband having filed the Puerto Rico divorce on May 9, 2026.

In analyzing the PKPA, the Puerto Rican Court invoked the Act's catch-all provision where "no other state has jurisdiction". In doing so, the Puerto Rican Court relied upon the Nassau County Family Court's dismissal of Wife's Petition for Habeas Corpus for lack of jurisdiction. However, as the Family Court expressly noted on the record, there was no custody petition pending at that time and thus, there was no judicial determination declining to exercise jurisdiction over the issue of custody. Conspicuously absent from the Puerto Rican Court's Order was any reference to this Court's August 24, 2026 Order which clearly addressed the issue of jurisdiction and set this matter down for an immediate fact-finding hearing. Nevertheless, the Puerto Rican Court stated, "[t]his leads us to the unavoidable conclusion that another court has already declined to exercise jurisdiction, deferring instead to Puerto Rico. Since this is the case, our jurisdiction would be in compliance with subsection (D) [of the PKPA], provided that it is in the best interests of the minors."

Without concerning itself with its own "home state" analysis, the Puerto Rican Court relied upon other post-commencement court filings to further support its conclusion that, "it is clear that, under our laws, this Court has jurisdiction over the matters of custody and parental relations concerning the minors." The only reference the Puerto Rican Court made to "home state" was a corrected document entitled "Accurate Travel Timeline" filed by Wife in the Puerto Rico divorce which noted a 17-day visit to Puerto Rico in November 2025 which the Puerto Rican Court used to conclude "that the belated and unexplained correction of this document undermines [Wife's] credibility and her position regarding the children's 'home state.' "¹

Husband's Supplemental Submission

Husband maintains that this Court should not proceed with a fact-finding hearing because the Puerto Rican Court has now articulated at least a "colorable basis" for its exercise of jurisdiction purportedly consistent with the PKPA, including subsection (D), where "another court [New York Family Court] has already declined jurisdiction, deferring instead to Puerto Rico" and where the Puerto Rican Court found that it was "in the best interests of the minors for [Puerto Rico] to assume jurisdiction over the matter of custody and parent-child relations, since the minors are residing in this judicial district and 3 of them are attending school in Puerto Rico. Similarly, at least one of the minors' parents is domiciled in Puerto Rico, and both parents have substantial ties to Puerto Rico."

Husband's counsel cites to several cases where New York courts consistently hold that, where a foreign court has issued a custody order and has exercised jurisdiction, the New York court must defer to the foreign court's custody determinations. Husband further argues that proceeding with a hearing on this issue is effectively conducting an appellate review of the Puerto Rican Court's application of its own laws and procedures, "inviting precisely the type of jurisdictional competition and conflict that PKPA was enacted to prevent."

Moreover, Husband's counsel notes that Wife is not without a remedy as she can pursue an appeal in Puerto Rico, noting that on September 15, 2026, Wife filed an application with the Puerto Rican Court to reconsider its September 4, 2026 Order. Thus, it is Husband's contention that Wife can and is availing herself of the remedies available to her to challenge any adverse Puerto Rico rulings.

Lastly, as to the implication of potential conflicting determinations by sister courts, Husband's counsel point to the "primacy of the first-in-time action: 'The competitor Court in which a substantially confirming action has already been commenced has the last word. New York may communicate, but must abide by the other court's determination' ". The only exception "is where the state in question possesses absolutely no colorable claim to jurisdiction".

Wife's Supplemental Submission

Wife contends that this Court should not give the Puerto Rican Court's Order automatic enforcement under the Full Faith and Credit Clause as the Puerto Rican Court does not have jurisdiction in the first instance, the September 4 , 2026 Order is not final, and recognition of that Order would offend this State's public policy. Wife's counsel contends that the Puerto Rican Court's own jurisdictional finding rests on factual and legal error as invoking the PKPA's catch-all "no other state has jurisdiction" provision ignored the fact that New York was indisputably the children's home state at the time of commencement of the Puerto Rico divorce. To this end, Wife's counsel argues that the Puerto Rican Court did not exercise jurisdiction "substantially in conformity" with the PKPA. Insofar as subdivision (c)(2) (catch-all provision) is only available where no other state has jurisdiction under any of the other PKPA grounds, including the home state ground, the Puerto Rican Court did not have jurisdiction in the first instance. In support of the arguments in favor of proceeding with a fact-finding hearing, Wife's counsel cites to New York case law where an evidentiary hearing is held to determine the jurisdictional question rather than automatically deferring to the foreign decree, including Weiss v Weiss, 29 Misc 3d 1202(A) (Sup. Ct. Kings County 2010) (hearing held to determine husband's actual domicile before deferring to foreign decree); Marcus v Marcus, 194 Misc. 464 (a party may attack a foreign divorce decree by "exposing the falsity of the factual representations or the claims of domicile"); Manasseri v Manasseri, 121 AD2d 697. 698 (2d Dept. 1986) (plaintiff, as the party attacking the validity of the sister-State judgment, has the burden of establishing its invalidity by demonstrating that defendant had not acquired a bona fide domicile in sister-State at the time divorce action was commenced).

Wife's counsel further avers that enforcing the Puerto Rican Court's Order would violate New York public policy where it is undisputed that New York is the children's "home state" — as a child's "home state" under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") and the PKPA is prioritized and controlling with respect to determining the proper forum for custody determinations. The other jurisdictional bases invoked by the Puerto Rican Court — child's significant connection to issuing state — are only utilized where the other state does not have jurisdiction or a court of the home state has declined to exercise jurisdiction on the grounds that the issuing state is the more appropriate forum.

Wife's counsel acknowledges that a New York Court may not disregard a sister state's judgment merely because it "disagrees with the reasoning underlying the judgment or deems it to be wrong on the merits," and New York may not inquire into "the merits of the action, the logic or consistency of the decision, or the validity of the legal principes on which the judgment is based," citing to Hala v Orang Regional Med. Ctr., 178 AD3d 151, 158-59 (2d Dept. 2019). Counsel argues, however, that a New York Court need not extend full faith and credit where the rendering court "did not have jurisdiction over the subject matter or the relevant parties."

With respect to the issue of what occurs in the event two competing jurisdictions are concurrently moving forward with proceedings and issue conflicting orders, Wife's counsel notes principles of full faith and credit and the "last-in-time" rule prevail. That is, the practical outcome is that the order/decree issued must first be examined and scrutinized for validity, and ultimately, the most recently issued, or last-in-time order/decree would stand.

DISCUSSION

This Court must now determine whether it should proceed with the hearing previously directed in its August 24, 2026 Order, dismiss this case based on the pending Puerto Rico divorce, or alternatively, stay this matter.

The UCCJEA and the PKPA have the same purpose. "The UCCJA represents a considered effort to give stability to child custody decrees, minimize jurisdictional competition between sister States, promote [cooperation] and communication between the courts of different States, all to the end of resolving custody disputes in the best interests of the child." Vanneck v Vanneck, 49 NY2d 602, 608 (1980). Similarly, the historical and legislative notes of the PKPA reflect that the PKPA seeks to "promote cooperation between State courts to the end that a determination of custody and visitation is rendered in the State which can best decide the case in the interest of the child; [and] deter interstate abductions and other unilateral removals of children undertaken to obtain custody and visitation awards." Vernon v Vernon, 100 NY2d 960, 967 (2003)² .

At the outset, this Court notes that the Puerto Rican Court's claim of jurisdiction is not based on an evidentiary hearing where the weight of documentary evidence and a party's credibility was determined after withstanding scrutiny. To the contrary, the Puerto Rican Court instead made credibility determinations "on the papers" and ignored the credibility determinations made by its own Municipal Court after an evidentiary hearing was held. To this end, the Puerto Rican Court purports to invoke the emergency basis for jurisdiction pursuant to 28 U.S.C. § 1738A(c)(2)(C), and finding that it has continuing jurisdiction under subdivision (d), but did not give credence to the Municipal Court's summary dismissal of Husband's "emergency" application and its finding that Husband's testimony was incredible, while Wife's testimony was credible. Perhaps most troubling was the absence of any "home state" analysis, except to discredit Wife's "home state" argument based solely on a 17-day absence from New York in the 6-month calculation necessary to establish "home state" jurisdiction. If in fact an evidentiary hearing revealed the plausibility of Wife's contention that she and the children were lured to Puerto Rico under false pretenses and the children were wrongfully detained by Husband's procurement of an ex parte order of protection, then what occurred here is precisely what the PKPA is intended to protect against.

On the question of whether Puerto Rico has a "colorable claim" of jurisdiction, the Court finds many of the cases cited by Husband distinguishable. For instance, in Quill v Quill, 99 AD2d 543 (2d Dept. 1984), the "colorable claim" was based on wife's allegations that husband had a problem with alcohol and had, in course of his frequent rages, twisted the child's arm and thrown him down without a reason. The Appellate Division reversed the New York court's second-in-time custody order finding that state of Florida had at least a colorable claim that it had jurisdiction under the DRL section which permits a court to exercise jurisdiction if the child is physically present and it is necessary in an emergency to protect the child. On the contrary, here, the evidence adduced at the Municipal Court's hearing on Husband's protection order revealed that there was no emergency and summarily dismissed the petition. The Puerto Rican Court then used that ex parte temporary custody order issued to Husband to form the basis for its continuing jurisdiction claim under the PKPA. If jurisdiction could be manifested in such fashion, it would vitiate the purpose of the PKPA.

In Fleet v Scarola, 221 AD2d 339 (2d Dept. 1995), the Second Department affirmed the lower court's denial of the father's application in New York to exercise emergency custody jurisdiction where a Florida court had already rendered a temporary custody order in favor of the mother. In finding that the Florida court was exercising its jurisdiction in conformity with the UCCJEA, the court noted that the father had previously filed a petition in Florida relating to custody in which he attested that all parties were Florida residents and that the child's home state was Florida. The Florida court then proceeded that it had jurisdiction, held a hearing and granted the mother temporary custody. Here, however, Wife has never contented that Puerto Rico is or was the children's home state.

In Mott, the lower court concluded it had jurisdiction without a hearing, and then directed a hearing to be held on the merits of the children's application to cease visitation per the Florida court order. By contrast, this Court did not direct a hearing on the merits of the custody dispute. Rather, this Court sought to hold a hearing on the seminal issue of subject matter jurisdiction given the myriad of factual issues presented by the underdeveloped record thus far.

Notwithstanding the foregoing, however, this Court is left with the very practical reality that the Puerto Rican Court issued an Order purporting to exercise continuing jurisdiction over the children. The current posture is thus that the September 4, 2026 Puerto Rican Court Order is "last-in-time", and proceeding with a hearing at this juncture may not be the most prudent course given the full faith and credit doctrine and last-in-time rule addressed by Wife's counsel. Wife's counsel cites In re Marriage of Hanley, where the California court held that a later Washington divorce decree superseded an earlier California interlocutory judgment. As relevant here, even though the Washington court may have erred in disregarding the California order, the aggrieved party's remedy was to litigate and appeal that issue within the Washington court system, not to relitigate it collaterally once the matter returned to California. While Wife relies on this case for the proposition that this Court should proceed with a hearing, and if the resultant order conflicts with the Puerto Rican Court's Order, Husband's remedy, as the aggrieved party, would be to appeal the issue in New York. However, as previously noted, the current posture is such that the Puerto Rican Court's Order is last-in-time, and it would appear that Wife's remedy, at this time, would be the appeal process in Puerto Rico. Further, given that Wife has already availed herself of that process, this Court is constrained to agree that proceeding with a hearing would not be the prudent course at this time.

Husband's position also supports this outcome. In Thompson v Thompson, 484 U.S. 174 (1988), cited by Husband, the United States Supreme Court held that the PKPA does not provide an implied cause of action in federal court to determine which of two conflicting state custody decrees is valid. The Supreme Court discusses the legislative history of the PKPA and the Act's intent and purpose. As relevant here, the PKPA was enacted principally to extend the requirements of and have the same operative effect as the full faith and credit statute. These and other principles cited by Husband also tend to support the conclusion that this Court should not proceed with a hearing at this time.

Applying the foregoing legal principles, and given the current procedural posture of both proceedings, this Court is constrained to find that a hearing to determine the issue of subject matter jurisdiction should not be held at this juncture. However, this Court shall not simply defer to Puerto Rico's jurisdictional determinations regarding the children as there remain clear questions concerning the propriety of our sister-State's exercise of continuing jurisdiction "substantially in conformity" with the PKPA. As such, all proceedings in this matter, including any ultimate determination concerning jurisdiction over custody matters relating to the parties' minor children, shall be stayed pending the outcome of the appeal process in Puerto Rico. The Court's determination herein preserves the children's potential home state status while appropriately deferring to the Puerto Rican Court's jurisdictional determination, despite any disagreement therewith.

Accordingly, it is hereby

ORDERED, that this matter is hereby STAYED pending the outcome of Wife's appeal in the divorce and custody action pending in Puerto Rico.

This constitutes the DECISION AND ORDER of this Court.

Dated: September 24, 2026

Mineola, New York

FOOTNOTES

1.   This Court notes that the 17-day visit to Puerto Rico in November 2025 — heavily relied upon by Husband's counsel and the Puerto Rican Court as a "material misrepresentation" — would be counted in the 6-month calculation as a temporary absence for purposes of a "home state" analysis under the PKPA.

2.   Notably, the lower court in Vernon, in determining whether New York properly asserted subject matter jurisdiction to determine the custody dispute, held a hearing where testimony was heard from family members to analyze whether the substantial connection test was met.

Jeffrey A. Goodstein, J.