In the Matter of Stanley F., Petitioner, v. Marlene F., Respondent
Family Court of New York, Westchester County
July 7, 1989
Facts:
Petitioner father by a motion brought on by an order to show cause sought temporary custody of the parties' two children. Temporary custody was granted to petitioner pending a hearing concerning the mental health of respondent mother and its effect, if any on the subject children. Respondent filed a cross motion seeking an order to vacate the provisional order giving petitioner temporary custody on grounds that Ontario County, Canada was the proper place of jurisdictional adjudication of the issue of custody. and not the State of New York, has jurisdiction as there is a pending divorce action currently before the Supreme Court of Ontario, Canada, wherein custody is an issue. Respondent further contends that an Ontario County Supreme Court order of custody granting respondent sole custody of the two children is still in full force and effect. Law Guardian for the children, having been given an opportunity to submit papers on the issue of jurisdiction, chose not to do so.
Issues:
Whether the respondent possessed any mental deficiency which would have a detrimental effect upon the children if they were to be in her custody?
Whether the state of New York had jurisdiction over the issue?
- Whether the respondent's motion for a fine against petitioner for bringing a frivolous motion should be granted?
Discussion:
This court held that during the fact-finding hearing which consisted of two full days of testimony, each side presented experts who had examined and evaluated the mother and subject children. At the conclusion of said hearing, the court determined that the mother did not possess any mental deficiency that would have the effect of impairing the health, safety or welfare of the children if they were to be in her custody. Accordingly, this court vacated that portion of the order to show cause dated June 16, 1989 which placed temporary sole custody in petitioner father, effective immediately.
This court held that based upon petitioner's assertion that the children were in danger of being physically or emotionally harmed if they were to remain in the care of their mother, this court acceded to respondent's request for New York to exercise jurisdiction solely for the limited purpose of determining whether, in fact, an emergency situation existed. Testimony at the hearing on the above matter having shown that an emergency situation does not now exist, the State of New York no longer has jurisdiction under the "emergency" section of the statute. In fact, for New York to exercise jurisdiction in the instant case would be contrary to the purpose and intent of the UCCJA which is to "avoid jurisdictional competition and conflict with courts of other states". In the instant case, the marital domicile of the parties was in Canada, and the respondent was brought up in Canada and lived there until recently. As for the children, they have spent most of their lives in Canada, including going to school there, and have grandparents there. In addition, respondent has a longstanding relationship with doctors in Canada who would be more knowledgeable than those in New York with regard to current and past situations. Further, a separation agreement and an order of custody, written and issued in Canada, and the pending divorce, must all be interpreted under Canadian law. Based upon the foregoing, maximum contacts with Canada plus access to relevant evidence there mandate that Canada retain jurisdiction
This court held that the respondent's motion for a fine against petitioner in the sum of no less than $ 5,000 for bringing a frivolous motion is denied. A parent's belief that court intervention is needed to protect the interests of a child based upon what he or she believes to be an emergency situation cannot be deemed frivolous. Testimony in the instant case clearly indicated that some of petitioner's assertions as to what happened did actually occur, and even though medical testimony as to an emergency situation proved him to be wrong, petitioner's action did not rise to the level of being frivolous.
Conclusion:
This court hence vacated the provisional order granting petitioner father custody. The court also granted respondent mother's cross motion on grounds that there were existing custody orders effective in Canada, which had jurisdiction over the dispute.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content
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