Vernon v. Vernon, 2003 N.Y. Int. 0103 (Sep. 19, 2003).

SUBJECT MATTER JURISDICTION - CONTINUING JURISDICTION - CHILD CUSTODY - DOMESTIC RELATIONS LAW 75-d(1)(b) - UNIFORM CHILD CUSTODY JURISDICTION ACT - FEDERAL PARENTAL KIDNAPPING PREVENTION ACT - CHILD VISITATION - INCONVENIENT FORUM

ISSUE & DISPOSITION

Issue(s)

1. Whether the federal Parental Kidnapping Prevention Act (PKPA) preempts the New York Domestic Relations Law in determining if a state can exercise continuing jurisdiction to modify a custody order for a child who has lived outside New York for several years.

2. Whether the two-prong "significant connection" test of Domestic Relations Law 75-d(1)(b) was met when a child had not lived in the state for several years.

Disposition

1. No. The PKPA grants a state that has made an original custody order the power to exercise continuing jurisdiction when the child or one of the parties to the order remains a resident of that state.

2. Yes. A child who was born in New York, whose parents married and divorced there, and whose custody was determined and challenged in New York courts has a significant connection with the state.

SUMMARY

Plaintiff-respondent Russell O. Vernon and Defendant-appellant Victoria M. Vernon were married in New York in 1985. They had one daughter. In June 1991, Plaintiff commenced an action for divorce and Defendant moved to Louisiana with the eleven-month-old child. New York Supreme Court granted a divorce judgment in 1992, based on a separation agreement granting Defendant sole legal custody with visitation to Plaintiff. The separation agreement provided that New York Supreme Court would retain jurisdiction of the case as long as one of the parties resided in New York. In 1993 Plaintiff moved unsuccessfully in New York court for sole custody. In 2000, Plaintiff brought an order to show cause alleging Defendant's failure to abide by the visitation schedule. Defendant moved for dismissal of the motion, arguing that it was against the child's best interests to visit the father and that New York should decline jurisdiction because it was an inconvenient forum. Defendant's dismissal motion was denied. After a hearing which Defendant did not attend, Supreme Court held Defendant in contempt and granted custody to Plaintiff. The Appellate Division and the Court of Appeals affirmed.

The Court first explicated that the Uniform Child Custody Jurisdiction Act (UCCJA), N.Y. Dom. Rel. Law Art. 5-A governs the custody order, but jurisdiction over the matter must be determined with reference to the federal Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (PKPA). Defendant argued that the PKPA preempts inconsistent state law, and thus that New York lacked subject matter jurisdiction to modify the original custody order. The Court noted, however, that Subsection (d) of the PKPA grants a state continuing jurisdiction over a custody order only if state law provides for such jurisdiction, and that state is the residence of the child or of any person claiming a right to custody of the child. Thus, the Court found that New York had continuing jurisdiction over the proceeding as long as Plaintiff remained a resident of New York and New York has jurisdiction under its own state laws. Under New York Domestic Relations Law (DRL) 75-d(1)(b), which controlled this proceeding, New York courts could properly decide a child custody matter if a two-prong "significant connection" test was satisfied, requiring that (i) the child and at least one parent have a significant connection with the state, and (ii) there is substantial evidence in the state concerning the child's "present or future care, protection, training and personal relationships."

Turning to the significant connection test, Defendant argued that the Court's reasoning in Vanneck v. Vanneck, 49 N.Y.2d 602 (1980), placed a "maximum contact" requirement on the significant connection test of DRL § 75-d(1)(b). Applying the flexible approach of DRL § 75-d(1)(b), the Court found that the child had a significant connection to New York because it was the state where she was born, where her parents married and divorced, where her father continued to reside, where she had visited him, and whose courts had decided her custodial arrangements since she was very young. Regarding the second prong of the test, the Court found substantial evidence concerning her present and future welfare in the state, noting the extensive record on appeal, including the testimony and report of a forensic psychologist involved in the case since its inception.

Finally, the Court upheld the conclusion of the courts below that granting New York courts continuing jurisdiction in this case was in the best interests of the child, in particular noting that the parties had previously agreed in their settlement agreement that New York would retain personal jurisdiction over the matter "for all purposes" as long as one of the parents lived in New York. Thus, the Court affirmed the order of the Appellate Division.

Prepared by the liibulletin-ny editorial board.