329/06
SUPREME COURT OF NEW YORK, KINGS COUNTY
2009 NY Slip Op 52260U; 2009 N.Y. Misc. LEXIS 3046

October 29, 2009, DecidedDelores J. Thomas, J.

Based upon the foregoing papers, defendant A. T. (Father) moves for a suspension and downward modification of his child support obligations on the ground that plaintiff Y. G. (Mother) allegedly has refused his visitation with the parties' daughter, has removed the child to another jurisdiction without court approval or notice to Father and has failed to provide him with an address, telephone number or e-mail address for the child. He further moves for an order directing a change of custody and/or immediate visitation with the child. Mother cross-moves for dismissal of Father's application on the grounds that: (1) the court lacks subject matter jurisdiction to resolve the instant motion, pursuant to Domestic Relations Law § 76-a (1) (b), since neither the parties nor the child resided within the state of New York on the filing date of the subject application or six months prior to same; and (2) the court lacks subject matter jurisdiction because the child and her mother, the plaintiff, had no significant connection   with the State of New York on the filing date of the instant application and for six months prior to such filing, and, in addition, substantial evidence is no longer available in the State of New York concerning the child's care, protection, training and personal relationships. Plaintiff also moves, alternatively, for an order whereby the court declines jurisdiction over the instant custody/visitation dispute on the ground that New York is an inconvenient forum and a declaration that the province of Ontario, Canada is the appropriate forum to exercise jurisdiction over the controversy between the parties.

The parties were divorced pursuant to a judgment of divorce which was granted upon Father's default on May 10, 2006. With respect to custody and child support, said judgment provides the following:

[I] is further ORDERED AND ADJUDGED that [Mother] shall have custody of the child of the marriage . . . ; and it is further

ORDERED AND ADJUDGED that the order, dated October 25, 2005, of the Family Court of Kings under Index No. F-06002/05 shall be continued, and a copy of this Judgment shall be served by [Mother's] attorneys upon the clerk of the Family Court within ten days after the date hereof, and it is further

ORDERED AND ADJUDGED that pursuant to the Order, dated October 25, 2005, of the Family Court of Kings under Index No. F-06002/05, [Father] shall pay to [Mother] as and for the support of the parties' child . . . the sum of Two Hundred Ten dollars ($ 210.00) per week for child support, commencing on October 28, 2005 and on Friday of each week thereafter, which shall be paid to [Mother] through the Support Collection Unit for Kings County located at NYS Child Support Processing Center . . . .

In support of his instant motion, Father submits an affidavit wherein he states the following, in relevant part, concerning the background of the subject custody/visitation dispute between the parties and the current custody/residential arrangements for the child:

[Myself] and [Mother] separated in or about 2002, and from that time until such time as [Mother] removed the child form the jurisdiction, the . . . child resided with the maternal grandmother, [Mother] and . . . other maternal relatives, in Brooklyn, and notwithstanding the fact that [I] had regular and frequent access to the child, the child was in the process of being brainwashed by [Mother] and . . . the maternal grandmother.

On or about June of 2006, without my consent and without court approval, [Mother] removed the . . . child from the State of New York to Ontario, Canada. [I] attempted to locate the child in Canada but was unsuccessful. [I] filed a petition for visitation with the Kings County Family court in February of 2007, but I was unable to effectuate service of the summons and complaint and allowed the proceeding to be dismissed without prejudice in 2008.

[M]y predecessor counsel . . . managed to acquire the name and address of the . . . child's school in Ontario, by securing said information from the . . . child's [former] school in Brooklyn . . . .

I attempted to contact the school in order to gain access to the child, even appearing at the same, in order to obtain the child's address, but not surprisingly, the school refused to divulge any pertinent pedigree information about [Mother] and . . . [our] daughter.

Since [Mother] relocated to Canada, she has done everything in her power to frustrate, defeat and impair my rights to parenting time with the . . . child, including but not limited to changing and/or disconnecting all of the phone numbers, and upon information and belief, advising the maternal grandparents and relatives to divulge nothing to me.

Her conduct necessitated numerous legal applications and filings in the Kings County Family Court, my incurring the expense of attorneys, investigators and process servers['] fees, costs and expenses, all in effort to merely find out my daughter's address and to gain access to the subject child.

Initially, from the time of our separation in 2002, until in or about July of 2006, I had regular and meaningful access to my daughter, even when the child was residing with the maternal grandparents, who were actively brainwashing the child against me. The grandparents have a history of alcohol abuse and aberrant behavior specifically directed at me.

Unfortunately, [Mother], at some point during the summer of 2006, either continuing to demonstrate her enmity toward me or displaying a careless disregard for the best interests and welfare of our daughter, snatched our daughter and moved to Canada leaving no forwarding information.

Then, after I respectfully requested that the maternal grandparents and that any member of [Mother's] family, provide me with my daughter[']s address and/or phone number [,] I was refused and ignored. I   was left with no choice but to bring this matter back before the Courts. In Family Court I was unable to make service of my application and therefore allowed same to be dismissed without prejudice.

 It is clear that I have no recourse but to come before this court seeking the enforcement relief that I am seeking. The [Mother's] actions were intended and have actually had the effect of prejudicing my legal rights.

I must therefore request that [Mother] be held in contempt of court for her spiteful, vindictive, and hateful behavior and punished, as the Court sees fit, that custody be changed, that visitation be ordered forthwith and that my support payments to [Mother], of Two Hundred Ten Dollars ($ 210.00) per week for child support, pursuant to the order of the Family Court, Kings County . . . and the Judgment of Divorce, which I continued to make until April 10, 2008, when I got laid off from my job, despite her actions, be suspended, and the monies returned to me.

I also request that [Mother] be directed to pay my counsel fees in this proceeding, by refunding to me, at very least, the $ 7,500.00 retainer fee I paid my present attorneys, and by paying my attorneys any additional fees required for services rendered. It is not fair that I have to keep coming back to court to enforce the rights to which I am entitled, and unless [Mother] is punished, she will continue to consider herself above the law and act as she wants.

* * *

[In addition], [s]ince the time of the entry of the judgment of divorce I have suffered an unanticipated and substantial change of circumstances justifying a downward modification of child support.

I was laid off from my employment with Brocade, on April 10, 2008 and currently receive unemployment benefits in the sum of $ 1,800 per month. I had previously earned a base salary of $ 132,000 per year, in addition to a $ 26,000 bonus. I have and continue to undertake a diligent job search effort and have had no success in finding gainful employment. (Internal paragraph numbering omitted).

In support of her cross motion, Mother states that the subject judgment of divorce was obtained upon the default of Father. He was served by Mother with all divorce documents in Santa Clara, California, after he was located there by private investigators retained by Mother. He commenced his own action for divorce against Mother on June 27, 2005, but thereafter did not prosecute such action.

With respect to the custody issues at bar, Mother states, in relevant part, the following:

After [Father] and I separated [on or about April 30, 2003], [Father] had limited time with [our daughter]; [Father] would occasionally call me and schedule visitation with [her], only to disappoint [her] by not showing up to see her. From on or about September, 2003 until on or about April, 2005, [Father] had no meaningful contact with [our daughter]. In addition, during the aforementioned time period [Father] failed to contribute to [her] support.

In 2005, [Father] commenced a visitation proceeding in the Family Court, Kings County and I commenced proceedings seeking custody of [our daughter] and child support in the same Court. On or about March, 2005, [Father] promised me that he was going to come to my apartment to visit [our daughter] and bring her a computer . . . except [he] failed to show.

* * *

On March 8, 2005, with my consent, the Family Court granted [Father] three (30 hours supervised visitation on a day on the weekends, at my home; [Father] showed up once and stayed for five (5) minutes. Between May 23, 2005 and November 7, 2005, the Family Court continued the aforesaid temporary Order of visitation for [Father], however [Father] failed to exercise visitation with [our daughter]. On November 7, 2005, [Father's] visitation proceeding was dismissed due to his non-appearance in court. [Father] has not visited with [our daughter] since on or about April-May, 2005 or for more than four (4) years.

After our divorce was finalized in May 2006, I relocated with [our daughter] to Ontario, Canada on or about July, 2006. Defendant had no contact with [our daughter] or me during this fourteen (14) month period [from May 2005 to July 2006].

* * *

[Father] relocated to California prior to our last Family court child support hearing on October 25, 2005, wherein [Father] appeared telephonically before [the] Support Magistrate . . . whereupon an Order of Child Support was entered on his consent.

[Our daughter] and I have lived continuously in Ontario, Canada since on or about July, 2006. [She] has made many friends and succeeded in school and completed the fourth, fifth and sixth grades in Canada. [She] is involved in sports and other activities. I remarried on August 24, 2007 and had a baby boy with my new husband on June 16, 2008.

* * *

As directed by this Court, over my attorney's objection, [our] daughter has called [Father] about eight (8) times but has only spoken to [him] on one (1) occasion. [She] tells me she has no interest in speaking [to] or visiting [Father], but continues to call [him], because I have instructed her to do so.

* * *

My attorneys have advised me that during the pendency of [Father's] recent Family Court custody/visitation proceeding, which was dismissed on September 24, 2008 due to [Father's] non-appearance and his counsel's lateness, [Father's] counsel asked that the Court . . . excuse [Father's] appearance because of his residence and employment in California. There is no doubt that [Father], during the Family court support proceeding and currently has earned substantial monies off the books. I agreed to accept his representation of his income, although I believed he earned more, hoping he would accept and comply with his agreement.

* * *

[Father's] credibility is further strained by virtue of his wilful violation of the order of Support on Consent . . . dated October 25, 2005 . . . which . . . was incorporated into our Judgment of Divorce . . . by not paying any child support, but also by not advising the Support Collection Unit of changes in his residential and mailing addresses and termination of benefits, and receipt of unemployment insurance benefits . . . (Original paragraph numbering omitted).

In further support of his motion and in opposition to Mother's cross motion, Father submits an affidavit which states, in relevant part, the following:

I commenced an action in the Kings County Family Court for visitation in or about March of 2005.

A Law Guardian from the Children's Law Center in Brooklyn was assigned to represent [our daughter], a temporary order for access was awarded to me, some visits took place, and ultimately through no fault of my own, and despite the repeated violations of the order of access by [Mother], I could no longer afford to finance the litigation when I became unemployed and laid off from my employment as a systems analyst in New York.

In May of 2005, during the pendency of the Family Court action, I found employment with a company called ACS in San Jose, California, as a systems analyst, and that's when I temporarily moved to California. I nevertheless continued with the proceeding in Family court and remained in California until April of 2008, when I was laid off from my position as an analyst at Barcode [sic].

In or about November 2005, I decided that pursuing a high conflict custody action commenced in May 2005, which had already dragged on for months, while I was temporarily residing in California, was financially an impossibility.

I chose rather, to ratchet down the tension in our dispute, letting things cool off, and rather than remain unemployed in New York and falling behind on my court ordered child support payments, I found work in California, and discontinued the Family Court action for custody in November 2005, without prejudice.

* * *
  traveled at least monthly back to New York to see [our daughter]. I tried to call her all the time, and further attempts were sometimes made twice a week by either me or by my parents, to see [her] in New York. Most attempts were unsuccessful.

* * *

My financial circumstances improved slightly in or about February of 2007, and having been unsuccessful at obtaining regular and meaningful access to [our daughter], and rarely even hearing from her, I commenced another proceeding in the Kings County Family Court.

I retained [counsel] to represent me and I retained the services of a private investigator in an effort to locate [Mother]. Incredibly we ultimately discovered that [Mother] had relocated to Toronto with [our daughter] in or about July of 2006, an act completely unbeknownst to me or to any members of my family.

In addition, Father avers that he was unable to complete service upon Mother of either his petition for custody/visitation or a subsequent petition for downward modification of his support obligation. The custody/visitation petition was pending from September 2007 until September 2008 and the petition for downward modification was dismissed without prejudice on January 8, 2008. Moreover, he claims that Mother and the parties' child maintain significant contacts with New York since Mother's brother, mother and grandmother, as well as an aunt and three cousins and their daughters' pediatrician, continue to reside within the state.

With respect to that portion of his motion seeking downward modification of his support payments, Father submits his 2007 and 2008 income tax returns which demonstrate that he earned $ 109,638 and $ 57,072 respectively during those tax years. He also submits a termination letter from Brocade dated April 10, 2008 and a decision from the California Unemployment Insurance Appeals Board, dated June 10, 2008, awarding him unemployment benefits. He also provides a list of entities with which he has sought employment since his discharge from Brocade.

The court finds, on the record before it, that it does not have subject matter jurisdiction to adjudicate the instant child custody dispute. Pursuant to statute, a court of this state which has made an initial child custody determination consistent with Domestic Relations Law § 76 has exclusive continuing jurisdiction over said determination until " a court of this state determines that neither the child, the child and one parent, nor the child and a person acting as parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships" (Domestic Relations Law § 76-a [1] [a]). Moreover, "[a] court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section seventy-six of this title" (DRL §  [*8]  76-a [2]).  Section 76 (1) (a) provides the following requisites concerning the exercise of jurisdiction by the court with respect to initial custody determinations:

1. Except as otherwise provided in section seventy-six-c of this title [concerning temporary emergency child custody jurisdiction], a court of this state has jurisdiction to make an initial child custody determination only if:

(a) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as parent continues to live in this state;

(b) a court of another state does not have jurisdiction under paragraph (a) of this subdivision, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under seventy-six-f or seventy-six-g of this title, and;

(I) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and

(ii) substantial evidence is available   in this state concerning the child's care, protection, training, and personal relationships;

(c) all courts having jurisdiction under paragraph (a) or (b) of this subdivision have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section seventy-six-f or seventy-six g of this title; or

(d) no court of any other state would have jurisdiction under the criteria specified in paragraph (a), (b) or (c) of this subdivision.

2. Subdivision one of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

3. Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination "Home state" is defined as "the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding" (Domestic Relations Law § 75-a). Moreover, in applying DRL  [*9]  § 76, "[a] court of this state shall treat a foreign country as if it were a state of the United States" (Domestic Relations Law § 75-d;  see also Randall v Randall, 305 AD2d 512, 513 [2003][finding that DRL § 75-d barred New York courts from exercising jurisdiction over custody proceeding brought in New York since Costa Rica was properly construed as the child's home state where the subject child had resided in Costa Rica almost since birth and did not reside in New York for the requisite six month period preceding commencement of said action]; see also Hector G. v Josefina P., 2 Misc 3d 801, 815 [2003][finding that initial jurisdiction over custody proceeding could only be invoked by New York court if foreign court declined jurisdiction and New York met other statutory prerequisites established by DRL § 76 (1) (b) where the Dominican Republic, and not New York, qualified as the child's "home state" as defined by DRL § 75-a)."Child custody determination" means "a judgment, decree or other order of a court providing for the legal custody, physical custody or visitation with respect to a child" (see Domestic Relations Law § 75-a [3]).

In any event, a court which has obtained either initial or continuing jurisdiction pursuant to this statutory framework may decline to exercise same if it determines that New York is an inconvenient forum for the adjudication of the subject custody dispute. In so deciding, the court is required to consider all relevant factors, including the following:

(a) whether domestic violence or mistreatment or abuse of a child or sibling has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(b) the length of time the child has resided outside this state;

(c) the distance between the court in this state and the court in the state that would assume jurisdiction;

(d) the relative financial circumstances of the parties;

(e) any agreement of the parties as to which state should assume jurisdiction;

(f) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(g) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and the familiarity of the court of each state with the facts and issues in the pending litigation. (DRL § 76-f).

Based upon the relevant statutory factors, the court finds that it does not have subject matter jurisdiction over the instant custody dispute. It is undisputed that the parties' child  elocated to Ontario, Canada with Mother in July 2006. Father did not move this court for    visitation or custody until March 16, 2009. In the interim, the parties' daughter has completed three grades in primary school in Canada and Mother has remarried and had another child. The parties' daughter currently resides with Mother, her step-father and younger brother in Canada. At the time of the subject relocation to Canada by Mother, there was no visitation or custody proceeding pending and Father had not obtained an order from the court with respect to same. Indeed, the only custody adjudication in effect at that time was the judgment of divorce which provided that Mother had sole custody of the parties' child and established Father's child support obligation.

The only evidence proffered by Father concerning the connection of the parties' child and Mother to New York is the presence within the state of several maternal relatives, as well as a physician who at one time acted as the child's pediatrician. Accordingly, in applying section 76 - a (1) (a) to the case at bar, the court finds that "neither the child, the child and one parent, nor the child and a person acting as parent have a   significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships." Rather, the child currently lives in Canada on a full-time basis with her Mother, step-father and younger brother and has completed three school grades in school within that jurisdiction. Substantial evidence concerning her relationships within the immediate family unit, friendships, activities, scholastic performance, health and development, therefore, cannot be said to exist any longer in New York, a forum with which the child now has an attenuated relationship with respect to all aspects of her daily life (see generally Matter of Gulyamova v Abdullaev, 53 AD3d 489-490 [2008]; Matter of Zippo v Zippo, 41 AD3d 915, 916 [2007]; Clark v Clark, 21 AD3d 1326, 1327 [2005]; King v King, 15 AD3d 999, 1000-1001 [2005]). Indeed, her residence in Canada is now the locus for such evidence. Given Mother's remarriage and the subsequent birth of her new child in Canada, as well as her continuous residence in Canada with the parties' child for more than three years, it cannot be said that, at this juncture, either Mother or the parties' daughter has a significant connection to a New York forum with respect to the instant visitation/custody determination sought by Father. Although Father apparently currently resides in Brooklyn, he was absent from the New York jurisdiction from sometime in 2005 to 2008 due to his relocation to California for employment purposes. Despite his current presence in New York and connections thereto, however, the relocation of Mother and the parties' child to Canada and their continued residence there for more than three years during which the child has completed three school grades and Mother has remarried and had another child precludes this court from exercising continuing jurisdiction with respect to custody and visitation issues. In addition, given the aforesaid factors, New York, as opposed to Ontario, Canada, cannot be construed as the child's "home state" and, therefore, the court currently does not possess the jurisdictional requisites necessary for it to assert jurisdiction for purposes of making an initial custody determination (see DRL § 76 [a]; see generally Matter of Delgallo v Delgallo, 56 AD3d 1213, 1213-1214 [2008], lv dismissed in part, denied in part 12 NY3d 871 [2009]; Grant v Finney, 45 AD3d 1216, 1217 [2007]). As a result, the court currently lacks both continuing subject matter jurisdiction over the instant custody dispute pursuant to DRL § 76-a (1) (2), and the authority to modify the custody provision of the judgment of divorce pursuant to DRL § 76 (2).

The court does, however, retain jurisdiction over that portion of Father's motion seeking a downward modification of his child support obligations. Pursuant to Family Court Act § 580-205 (a) (1) and (2), "[a] tribunal issuing a support order consistent with the law of this state has continuing, exclusive jurisdiction over a child support order . . . as long as this state remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued . . . ." (see also King, 15 AD3d at 1000 [noting its prior vacatur of trial court order deferring jurisdiction over child modification issues to California where New York remained the residence of the obligor father and, therefore, New York retained jurisdiction over support issues pursuant to Family Court Act § 580-205(a)(1)]; cf. Holloway v Holloway, 35 AD3d 1126, 1127 [2006];  Matter of Batesole-Harmer v Batesole, 28 AD3d 551, 551 [2006]; Matter of Catalano v Catalano, 295 AD2d 605, 606 [2002]). In the instant case, the court finds that New York is the current residence of Father, the obligor under the child support provision of the subject divorce judgment, based upon his 2008 tax return filing and his representations that his presence in California was only temporary and for the purpose of obtaining employment after his New York employment ceased. Accordingly, pursuant to section 580-205 (a) (1), the court retains jurisdiction to consider Father's application for a downward modification of his child support payments.

The court declines, on the record before it, to grant Father's motion for downward modification. "Although a parent's loss of employment may constitute a change of circumstances warranting a downward modification where he or she has diligently sought re-employment, the proper amount of support payable is determined not by a parent's current economic situation, but by a parent's assets and earning power" (Matter of D'Altilio v D'Altilio, 14 AD3d 701, 701 [2005]; see also Matter of Awwad v Awwad, 62 AD3d 695, 695 [2009]; Matter of Fragola v Alfaro, 45 AD3d 684, 685 [2007];  Beard v Beard, 300 AD2d 268, 269 [2002]). Father has produced income tax returns which demonstrate that his income declined approximately 50% from 2007 to 2008. However, he has failed to produce any information concerning his assets. Most importantly, he has stated, in wholly conclusory terms, that he has attempted to secure work commensurate with his skills and past earnings with several entities, but fails to describe whether open positions actually existed at such entities, the methods utilized in his job search or if he was offered any position with the companies identified. Accordingly, given the relatively recent nature of Father's current economic difficulties, as well as his considerable earning potential, the court is not satisfied that Father lacks the assets or ability, at this time, to comply with his child support obligations. As a result, the court declines to grant the downward modification he seeks as part of his instant motion.

In addition, Father contends that his support obligations should be suspended entirely due to mother's alleged interference with his visitation rights. Such argument is also    unavailing. "A court has the authority to suspend a noncustodial parent's obligation to pay child support and/or maintenance when it finds that the custodial parent has deliberately frustrated or actively interfered with the noncustodial parent's visitation rights" (Katz v Katz, 55 AD3d 680, 682-683 [2008]; see also Rivera v Echevarria, 48 AD3d 578, 578 [2008]; Ledgin v Ledgin, 36 AD3d 669, 670 [2007]). In the instant case, however, the judgment of divorce did not provide for visitation by Father and Father subsequently failed to obtain an order of visitation from Family Court or Supreme Court; indeed, at least two Family Court custody/visitation proceedings commenced by him were dismissed during the time period from 2005 to 2008. Although Mother relocated to Canada with the parties' daughter in 2006, there was no court order directing her to remain in New York for purposes of Father's visitation, or otherwise, or to notify Father of her relocation (see Consentino v Sweeney, 143 AD2d 971, 973 [1988][rejecting father's argument that mother had forfeited her entitlement to child support payments upon her relocation to California in alleged violation of an agreement between the parties requiring her to continue to reside in the New York area where no such agreement was produced and neither the separation agreement nor the divorce judgment placed any geographical limitation upon the mother's choice of residence]). Moreover, to the extent Father claims that Mother and members of her family have attempted to alienate the parties' child from him, such allegations are conclusory and unsupported based upon the current record before the court.

As a result, that portion of Father's motion seeking custody and/or visitation is denied, pursuant to DRL § 76-a (1) (a), for lack of subject matter jurisdiction.  In addition, that portion of Father's motion seeking a downward modification of his child support obligations is also denied.

The foregoing constitutes the decision and order of the court.