IN RE: Jayne SMITH

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Family Court, Kings County, New York.

IN RE: Jayne SMITH, Petitioner, v. John SMITH, et al., Respondents.1

Decided: January 05, 1998

Patricia Ann Fersch, for petitioner. John Smith and another, pro se. Orlian & Magill (Goldah Magill, of counsel), Law Guardian.

In this proceeding under the Uniform Child Custody Jurisdiction Act (Domestic Relations Law Art. 5-A) commenced by the child's adult sibling, the respondent parents move to dismiss the petition on the grounds that New York is not the child's “home state” (see Id. at § 75-d[1][a][i]) and that the court, therefore, lacks subject matter jurisdiction.   For the following reasons, the motion is denied.

Petitioner and the law guardian set forth that (i) respondents physically and sexually abused their 15-year-old daughter, Marcelle, in their home state of Florida, (ii) the child is suicidal, (iii) respondents refuse to provide psychotherapy for the child, and (iv) the child recently fled to New York and refuses to go home.   The Florida child welfare authorities conducted an investigation of the child abuse allegations and determined them to be “groundless and untrue.”   However, said investigation was not a proper or thorough one, and the Florida child welfare authorities never even interviewed the child.   Cf. Bennett v. Jeffreys, 40 N.Y.2d 543, 549, 356 N.E.2d 277, 283, 387 N.Y.S.2d 821, 827 (1976) (warning against the “obsequious or routine” reliance on social work reports in custody proceedings in which “experts ․ express opinions which may be subjective or are not narrowly controlled by the underlying facts”).

In litigation respondents commenced after the present proceeding was filed in New York, the Florida Circuit Court purported to assert jurisdiction over this custody matter and granted respondents' ex parte application for temporary custody of the child.   However, the Florida court's order was based solely on respondents' affidavits and the patently insufficient child welfare investigation.   Further, the Florida court failed to appoint a law guardian to represent Marcelle, thereby completely preventing the child from being heard.   Finally, despite knowledge of the pendency of the present proceeding, the Florida court assumed jurisdiction, granted temporary custody to respondents and took these actions without first communicating with this court-all in violation of Florida's version of the Uniform Child Custody Jurisdiction Act.  Fla.Stat. § 61.1314;  Hickey v. Baxter, 461 So.2d 1364 (Fla.Dist.Ct.App.1984).

Given the foregoing and notwithstanding that Marcelle's “home state” actually is Florida, her interests require that this court assume “emergency jurisdiction”, order that the child remain in petitioner's temp-orary care in New York, and determine custody on the merits.   See Domestic Relations Law § 75-d(1)(d)(i);  28 U.S.C.A. § 1738A(c)(2)(C)(ii);  Wells v. Van Coutren, 200 A.D.2d 577, 606 N.Y.S.2d 295 (2nd Dept.1994).   Under the Uniform Child Custody Jurisdiction Act, New York is not precluded from exercising jurisdiction because the custody litigation was commenced here first.  Domestic Relations Law § 75-g;  see Vanneck v. Vanneck, 49 N.Y.2d 602, 404 N.E.2d 1278, 427 N.Y.S.2d 735 (1980).

PHILIP C. SEGAL, Judge.