| Matter of Joy v Kutzuk |
| 2012 NY Slip Op 07002 [99 AD3d 1049] |
| October 18, 2012 |
| Appellate Division, Third Department |
| In the Matter of William E. Joy, Appellant, v Grace E. Kutzuk,Respondent. |
—[*1] Clifford Gordon, Monticello, for respondent. Alexandra Bourne, Rock Hill, attorney for the child.
Malone Jr., J. Appeal from an order of the Family Court of Sullivan County (Meddaugh, J.),entered May 18, 2011, which, among other things, dismissed petitioner's application, in aproceeding pursuant to Family Ct Act article 6, for custody of the parties' child.
The parties, who never married, are the parents of the subject child (born in 2007) andseparated prior to the child's birth. Respondent (hereinafter the mother) relocated with the childfrom Sullivan County to the state of Washington when the child was four months old. In March2010, for reasons that are disputed, the child returned to Sullivan County to reside temporarilywith petitioner (hereinafter the father). After the child had been in the father's custody forapproximately three weeks, the father commenced a custody proceeding alleging, among otherthings, that the mother—a recovering alcoholic—had relapsed and failed to enter arehabilitation program. Upon the mother's default, by order entered in August 2010, FamilyCourt (Ledina, J.) granted the father custody of the child. The mother then moved to vacate thatorder, alleging that she had never received notice of the proceeding prior to entry of the order,and that New York lacked subject matter jurisdiction over the proceeding under the UniformChild Custody Jurisdiction and Enforcement Act (see Domestic Relations Law art 5-A[hereinafter UCCJEA]). She also filed petitions in Washington to establish paternity andguardianship of the child. [*2]Finding that it had neither subjectmatter nor "emergency" jurisdiction, Family Court, by order entered September 17, 2010, vacatedthe custody order that had been entered upon the mother's default.
On October 1, 2010, the father commenced the instant proceeding, again seeking custody ofthe child. Following an ex parte telephone conference with the judge presiding over the mother'sproceeding in Washington, Family Court (Ledina, J.) issued an order, entered in December 2010,finding that New York had gained subject matter jurisdiction due to the child's presence in NewYork for six consecutive months and that New York was the appropriate venue given thelocation of witnesses and relevant evidence. The court then awarded the father temporary custodyof the child. Following a fact-finding hearing, Family Court (Meddaugh, J.) dismissed thepetition in May 2011, finding that, contrary to the prior order, New York did not have subjectmatter jurisdiction over the matter. The father appeals.[FN*]
While we agree with the father that Family Court (Meddaugh, J.) violated the doctrine of thelaw of the case by overruling the prior finding of the court (Ledina, J.) that New York had subjectmatter jurisdiction (see generally Martin v City of Cohoes, 37 NY2d 162 [1975]), thisCourt is not bound or restricted by that doctrine (see Matter of Jonathan M., 61 AD3d 1374, 1375 [2009]). Upon ourreview of the order from which this appeal is taken, "in the interest of achieving substantialjustice" (Post v Post, 141 AD2d 518, 519 [1988]), we affirm.
Pursuant to the UCCJEA, a child's " '[h]ome state' [is] the state in which [the] child livedwith a parent . . . for at least six consecutive months immediately before thecommencement of a child custody proceeding" (Domestic Relations Law § 75-a [7]; see Matter of Destiny EE. [Karen FF.],90 AD3d 1437, 1440 [2011], lv dismissed 19 NY3d 856 [2012]). However, a parentmay not wrongfully remove or withhold a child from the other parent for the purpose ofestablishing a "home state" for that child (see Matter of Felty v Felty, 66 AD3d 64, 71 [2009]; Matter of Krymko v Krymko, 32 AD3d941, 942 [2006]). When a child resides in New York as a result of being wrongfullyremoved or withheld from his or her home state, the child will be considered to be temporarilyabsent from the home state (see Domestic Relations Law § 75-a [7]), and such timewill not be counted toward establishing New York as the home state for purposes of decidingcustody issues.
Here, Family Court (Meddaugh, J.) properly determined that the child had not lived with thefather for the six-month period required to establish subject matter jurisdiction in New York.There is no dispute that the father was supposed to return the child to the mother afterapproximately one month. However, after approximately three weeks, the father unilaterallydecided to keep the child in New York and commenced a custody proceeding, thereby wrongfullywithholding the child from the mother. His actions in that regard cannot result in New Yorkacquiring home state jurisdiction over the child for the purposes of making a custodydetermination (see Matter of Krymko v Krymko, 32 AD3d at 942).
Moreover, we agree with Family Court (Meddaugh, J.) that the court's (Ledina, J.) priorfinding that New York was a more appropriate forum than Washington (see DomesticRelations Law §§ 76 [1] [b]; 76-f [2]) was not proper. Notably, although the court(Ledina, J.) allegedly [*3]came to an agreement with a judge inWashington that New York was the more appropriate forum in which to decide the issue ofcustody, no record of that communication between the courts is in the record (seeDomestic Relations Law § 75-i [4], [5]). Further, a review of the record does not supportthe court's (Ledina, J.) conclusion that "the most significant issues relating to the case presented[were] provable by witnesses resident in New York, and the issues of the . . .[m]other [were] capable of proof largely in documentary form." However, at the brieffact-finding hearing at which many facts and allegations were in dispute, no documentaryevidence was presented by either party. In light of the father's accusations regarding drug andalcohol abuse by the mother, her allegedly unfit or unstable living situation, her unemploymentand alleged child protective services and/or police involvement in Washington, it is apparent thatmore relevant evidence in the form of both witness testimony and documents exists inWashington. Finally, we find that to allow this custody proceeding to continue in this state"would contravene one of the stated purposes of the [UCCJEA], that of deterring the unilateralremoval of children from one jurisdiction to another" (Matter of Metcalf v Turner, 154AD2d 792, 794 [1989]), and would reward the father for his wrongful withholding of the childfrom the mother.
To the extent not specifically addressed, the father's remaining contentions have beenconsidered and found to be without merit.
Lahtinen, J.P., Stein, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: This Court granted the father'smotion for a stay of the order pending appeal.