IN RE: Sherri HAHN

Reset A A Font size: Print

Supreme Court, Appellate Division, Third Department, New York.

IN RE: Sherri HAHN, Appellant, v. Thomas A. RYCHLING Sr. et al., Respondents.

Decided: February 25, 1999

Before:  MIKOLL, J.P., CREW III, YESAWICH JR., CARPINELLO and GRAFFEO, JJ. Andrea T. Vacca, Ballston Spa, for appellant. Thomas E. Lavery, Ballston Spa, for Thomas A. Rychling Sr., respondent. Martin J. Kehoe III, Albany, for Alexander Rychling.

Appeal from an order of the Family Court of Saratoga County (Nolan Jr., J.), entered September 3, 1997, which, in a proceeding pursuant to Family Court Act article 6, granted a motion by respondent Thomas A. Rychling Sr. to dismiss the petition for lack of subject matter jurisdiction.

On August 26, 1996, petitioner stipulated to the entry of an order granting custody of her then four-year-old son to respondent Thomas A. Rychling Sr., the child's paternal grandfather, who was a resident of Michigan.   The order provided for telephone contact between petitioner and the child and visitation with his maternal grandmother, respondent Greer Westcott.   The child thereafter moved to Michigan with Rychling where they have resided continuously since August 1996.1  In the interim, the child has had regular telephone contact with petitioner and has visited his grandmother in New York on two occasions.

In June 1997, petitioner commenced this proceeding seeking modification of the August 1996 order by awarding her sole custody of her son.   Rychling moved to dismiss the petition on the ground that Family Court lacked subject matter jurisdiction or, alternatively, on the basis of forum non conveniens.   Family Court granted the motion, finding that it lacked jurisdiction pursuant to the provisions of Domestic Relations Law § 75-d (1) as preempted by the Federal Parental Kidnapping Prevention Act (28 U.S.C. § 1738A) (hereinafter PKPA).   This appeal ensued.

 We affirm.   Both the PKPA and the Uniform Child Custody Jurisdiction Act (hereinafter UCCJA), adopted by this State in 1977 (L. 1977, ch. 493) and embodied in Domestic Relations Law article 5-a, are designed to, inter alia, prevent jurisdictional competition and conflict between state courts in custody and visitation matters (see, Pub. L. 96-611, § 7[c][5] [1980];  Domestic Relations Law § 75-b [1][a] ).   Insofar as is relevant to this appeal, the PKPA provides that a custody determination made by a state court is consistent with the provisions thereof if “such court has jurisdiction under the law of such State” (28 U.S.C. § 1738A [c][1] ) and the court has continuing jurisdiction under 28 U.S.C. § 1738A (d).   With respect to the “continuing jurisdiction” predicate, 28 U.S.C. § 1738A (d) provides as follows:

The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues so long as the requirement of [28 U.S.C. § 1738A (c)(1) ] continues to be met and such State remains the residence of the child or of any contestant.

In other words, the jurisdiction of the relevant state court continues provided such court has not “lost” jurisdiction in the interim and either the child or one of the contestants continues to reside there.   Thus, as applied to the instant proceeding, petitioner needed to demonstrate that New York has jurisdiction under its own laws (see, 28 U.S.C. § 1738A [c][1] ) and that either she or the child continued to reside here.   As there does not appear to be any dispute that petitioner indeed resides in this State, the issue distills to whether New York has jurisdiction under the UCCJA to entertain petitioner's modification application.

 The jurisdictional predicates under the UCCJA are set forth in Domestic Relations Law § 75-d.   In attempting to establish jurisdiction here, petitioner relies upon Domestic Relations Law § 75-d (1)(b), which provides that a New York court has jurisdiction to make or modify a custody determination if:

* * * it is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is within the jurisdiction of the court substantial evidence concerning the child's present or future care, protection, training, and personal relationships.

Petitioner argues that inasmuch as she and the child indeed have a significant connection to this State and, further, that the bulk of the evidence and information concerning the child's welfare is present here, New York has acquired jurisdiction pursuant to Domestic Relations Law § 75-d (b)(1).   We disagree.

First, petitioner's contention ignores our recent decisions in Matter of MacAdam v. Hosmer, 244 A.D.2d 665, 664 N.Y.S.2d 156, lv. denied 91 N.Y.2d 806, 669 N.Y.S.2d 1, 691 N.E.2d 1027 and Matter of Noland v. Noland, 200 A.D.2d 922, 607 N.Y.S.2d 450, which held that jurisdiction cannot be invoked under Domestic Relations Law § 75-d (1)(b) if another state is the “home State” of the child 2 (see, Warshawsky v. Warshawsky, 226 A.D.2d 708, 641 N.Y.S.2d 877;  Matter of Croskey v. Taylor, 183 A.D.2d 680, 584 N.Y.S.2d 67;  Matter of Perri v. Mariarossi, 172 A.D.2d 671, 672, 568 N.Y.S.2d 637, lv. denied 79 N.Y.2d 757, 583 N.Y.S.2d 193, 592 N.E.2d 801;  People ex rel. Rosenberg v. Rosenberg, 160 A.D.2d 327, 328-329, 553 N.Y.S.2d 734;  Matter of Michael P. v. Diana G., 156 A.D.2d 59, 64-65, 553 N.Y.S.2d 689, lv. denied 75 N.Y.2d 1003, 557 N.Y.S.2d 308, 556 N.E.2d 1115;  but see, Matter of Irwin v. Schmidt, 236 A.D.2d 401, 402, 653 N.Y.S.2d 627, lv. denied 89 N.Y.2d 815, 659 N.Y.S.2d 856, 681 N.E.2d 1303;  Matter of Heitler v. Hoosin, 143 A.D.2d 1018, 533 N.Y.S.2d 600;  Matter of Noguera v. Noguera, 129 A.D.2d 906, 908-909, 514 N.Y.S.2d 542).

 More significantly, petitioner, in contending that New York has acquired jurisdiction under Domestic Relations Law § 75-d (1)(b), overlooks the critical distinction that exists between that section and its Federal counterpart under the PKPA (see, 28 U.S.C. § 1738A [c][2][B] ).   Although 28 U.S.C. § 1738A (c)(2)(B) indeed contains much of the same “best interest”, “significant connection” and “substantial evidence” language found in Domestic Relations Law § 75-d (b)(1), such provision also requires that “it appear[ ] that no other State would have jurisdiction under [28 U.S.C. § 1738A (c)(2)(A) ]”, i.e., that no other state is the “home state” of the child or had been for the six months immediately preceding the commencement of the underlying proceeding.   As the PKPA preempts the UCCJA by virtue of the Supremacy Clause of the U.S. Constitution (see, Matter of Michael P. v. Diana G., supra, at 65, 553 N.Y.S.2d 689), Domestic Relations Law § 75-d (b)(1) must be read as incorporating the additional limitation set forth in 28 U.S.C. § 1738A (c)(2)(B) (see, Matter of Michael P. v. Diana G., supra, at 65, 553 N.Y.S.2d 689;  Sobie, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 14, Domestic Relations Law § 75-d, at 306).

Inasmuch as the record before this court reflects that the child who is the subject of this proceeding had resided in Michigan for the 10 months immediately preceding the commencement of this matter, Michigan qualifies as the home state of the child and, accordingly, New York cannot acquire jurisdiction under Domestic Relations Law § 75-d (1)(b) (see, Matter of MacAdam v. Hosmer, 244 A.D.2d 665, 664 N.Y.S.2d 156, supra ).   Accordingly, Family Court's order dismissing the modification petition for lack of subject matter jurisdiction is affirmed.

ORDERED that the order is affirmed, without costs.

I respectfully dissent.

The Parental Kidnapping Prevention Act (hereinafter PKPA), 28 U.S.C. § 1738A (c), provides, in relevant part, that:

A child custody determination made by a court of a State is consistent with the provisions of this section only if-

(1) such court has jurisdiction under the law of such State;  and

(2) one of the following conditions is met:

* * *

(E) The court has continuing jurisdiction pursuant to subsection (d) of this section.

Subdivision (d) of 28 U.S.C. § 1738A provides as follows:

The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section [jurisdiction under State law] continues to be met and such State remains the residence of the child or of any contestant.

Thus, we have previously recognized that even where New York is no longer the “home state” of a child, the PKPA permits a State court to exercise continuing jurisdiction to modify its prior custody determination provided the court has jurisdiction under State law and one of the contestants resides in this State (see, Matter of Noguera v. Noguera, 129 A.D.2d 906, 908-909, 514 N.Y.S.2d 542;  see also, Ellor v. Ellor, 249 A.D.2d 705, 671 N.Y.S.2d 543;  Matter of Irwin v. Schmidt, 236 A.D.2d 401, 653 N.Y.S.2d 627, lv. denied 89 N.Y.2d 815, 659 N.Y.S.2d 856, 681 N.E.2d 1303;  Ginn v. Strafaci, 223 A.D.2d 883, 636 N.Y.S.2d 230;  Clark v. Boreanaz, 159 A.D.2d 981, 552 N.Y.S.2d 760;  Matter of Heitler v. Hoosin, 143 A.D.2d 1018, 533 N.Y.S.2d 600).

The critical point, ignored by the majority, is that where the proceeding seeks modification of a prior custody order made by a court of this State, New York may exercise jurisdiction pursuant to subdivision (d) of 28 U.S.C.A. § 1738 upon a finding that the criteria enumerated in Domestic Relations Law § 75-d (1)(b) have been met.3  It remains entirely true, but irrelevant here, that where the provisions of subdivision (d) do not apply, i.e., where the proceeding seeks not modification but an original custody determination, the child's “home state” has exclusive jurisdiction.   The cases relied upon by the majority (Warshawsky v. Warshawsky, 226 A.D.2d 708, 641 N.Y.S.2d 877;  Matter of Perri v. Mariarossi, 172 A.D.2d 671, 568 N.Y.S.2d 637, lv. denied 79 N.Y.2d 757, 583 N.Y.S.2d 193, 592 N.E.2d 801;  Matter of Michael P. v. Diana G., 156 A.D.2d 59, 553 N.Y.S.2d 689, lv. denied 75 N.Y.2d 1003, 557 N.Y.S.2d 308, 556 N.E.2d 1115) involve proceedings not to modify custody determinations but to obtain them in the first instance.

Therefore, the question of whether Family Court possessed jurisdiction depends upon whether the criteria enumerated in Domestic Relations Law § 75-d (1)(b) have been met.   While this would ordinarily entail remittal to Family Court to determine whether New York has jurisdiction under Domestic Relations Law § 75-d (1)(b) and, if so, whether Michigan is a more appropriate forum (see, Domestic Relations Law § 75-h), the record upon which Family Court would base such determinations is fully before us and I would address the matter in the interest of judicial economy, finding that jurisdiction under Domestic Relations Law § 75-d (1)(b) is appropriate.   The child lived in New York from birth until his move to Michigan at age four.   Although he resided in Michigan for 10 months prior to the filing of the within petition, he visited his family in New York twice, for periods of one and four weeks.   Petitioner resides in New York and intends to continue to do so if she regains custody of her son.   The child's sister, maternal grandmother and other extended family and close friends reside in New York. The child has been treated by the same pediatrician since birth and enjoys a close relationship with him.

Substantial evidence concerning the child's present and future well-being are to be found within this State, in the form of (1) evidence relating to petitioner's full recovery from substance abuse and her improved ability to care for her son, and (2) testimony from the child's pediatrician relating to petitioner's allegation of neglect against respondent.   Petitioner asserts that she would produce relevant testimony from the child's preschool and Head Start teachers, whose availability for a Michigan proceeding is questionable.   These facts sufficiently establish that the child and petitioner have a significant connection with New York, that substantial evidence concerning the child's well-being is within this State, and that it is accordingly in the child's best interest for Family Court to assume jurisdiction.

FOOTNOTES

1.   In March 1997, Rychling was granted guardianship of the child by a Michigan court.

2.   The PKPA defines the “home state” of a child, in relevant part, as “the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months”.   Similarly, insofar as is relevant to this appeal, Domestic Relations Law § 75-c (5) defines “home state” as “the state in which the child at the time of the commencement of the custody proceeding, has resided with his parents, a parent, or a person acting as a parent for at least six consecutive months”.

3.   The confusion doubtlessly derives from the unfortunate dictum in Matter of MacAdam v. Hosmer, 244 A.D.2d 665, 664 N.Y.S.2d 156 (whose holding was based not on jurisdiction but on forum non conveniens ) that “jurisdiction cannot be exercised pursuant to Domestic Relations Law § 75-d (1)(b) as this section has been effectively preempted by 28 U.S.C. § 1738(c)(2)(B), which precludes ‘ “the exercise of jurisdiction where another State is the home State of the child” ’ ” (id., at 666, 664 N.Y.S.2d 156, quoting Matter of Noland v. Noland, 200 A.D.2d 922, 923, 607 N.Y.S.2d 450, quoting Matter of Croskey v. Taylor, 183 A.D.2d 680, 680, 584 N.Y.S.2d 67).   While accurately formulating the general rule, this language fails to take into account the exception available under 28 U.S.C. § 1738A (d), applicable to the instant matter.

CREW III, J.

YESAWICH JR., CARPINELLO and GRAFFEO, JJ., concur.

Copied to clipboard