9991/05 SUPREME COURT OF NEW YORK, KINGS COUNTY
2005 NY Slip Op 51127U; 8 Misc. 3d 1016A; 803 N.Y.S.2d 19; 233 N.Y.L.J. 106
May 18, 2005, Decided
Eric I. Prus, J.

The parties to this matrimonial action were married in New York but years later, after moving to Nevada, and experiencing a breakdown in their marriage, procured a divorce through the Nevada courts. Plaintiff/wife now moves this court by Order to Show Cause to assign jurisdiction over the parties and their children to the New York courts, to modify an order of joint legal custody issued by the Nevada court, to designate plaintiff as the sole custodial parent, to direct supervised visitation by the defendant/husband, and to determine that this court must exercise its power to intervene in this action on an emergency basis due to the Nevada court's failure (1) to adhere to constitutional due process requirements; and (2) to recognize the dangerous situation in Nevada where the parties' children have been subject to physical, mental and sexual abuse by defendant/husband and his current spouse. Defendant cross-moves for summary judgment and dismissal pursuant to various provisions of the CPLR and DRL.

Facts pertinent to the resolution of these motions are as follows:

11/20/1995 - The parties were married in New York.

2/1998 - The parties relocated to Nevada.

6/11/2001 - Twin children (A and J ) were born to the parties.

12/19/2003 - A stipulated decree of divorce was entered in and by the State of Nevada, ruling, inter alia, that the Nevada court has complete jurisdiction over the parties.

4/2/2004 - Plaintiff obtained an order from the Nevada District Court permitting her and the twin children to permanently relocate to New Jersey. The order also determined the amount of child support arrears, child support, attorney fees, visitation and directed garnishment as a method of collection for all monies owed and for obligations into the future. It appears that this relief was granted on default; defendant failed to appear in court on this day.

4/30/2004 - Defendant moved the Nevada court to vacate the order permitting relocation; plaintiff opposed the motion.

5/13/2004 - A hearing was held by the Nevada Court on the matters of relocation and visitation with the following outcome: the garnishments were terminated, plaintiff would continue to be the custodial parent and visitation would be on a two month rotating schedule (two months with plaintiff and two months with defendant until the children enter first grade). The court directed defendant's counsel to prepare an order reflecting the above. Plaintiff claims that she did not consent to this agreement and claims there is no evidence of such agreement and consequently, the implementation of these terms are in violation of due process. Exhibits annexed to the parties' papers include the Nevada court minutes of the 5/13/2004 hearing which suggest that the plaintiff was present and represented by counsel.
3/8/2005 - A Nevada Final Custody Decree was entered and reflected the Nevada court's rulings of ten months prior (the 5/13/2004 hearing). No attendant Notice of Entry of Order or affidavit of service was submitted to this court and the order is stamped by the assigned Nevada judge, not signed.

4/7/2005 - A and J were scheduled to be picked up by defendant's wife at a predetermined location in Pennsylvania in order for her to accompany them back to Nevada for their two month visitation with defendant. The plaintiff failed to appear with the children. (Plaintiff had called defendant on 4/4/2005 to tell him that she did not plan on honoring her obligation to turn the children over to him).

4/26/2005 - The Nevada court addressed various requests for relief submitted by the defendant as a result of plaintiff failing to comply with the Nevada court's prior orders with respect to visitation. The court made the following rulings: defendant is to have temporary sole legal and physical custody of A and J, plaintiff is to have supervised visitation, plaintiff is to pay child support, and the plaintiff is to pay the defendant counsel fees. The court issued a pickup order and set a 6/1/05 hearing date on the matter of plaintiff's alleged contempt of court.

After a careful consideration of the submissions of the parties, a review of the testimony of all witnesses who testified at the hearing held on May 11 and 16, 2005, and the arguments presented by counsel for the parties, this court declines to assert jurisdiction in this case. Plaintiff has failed to sustain her burden of proof in demonstrating either that the Nevada courts violated the due process of the plaintiff and/or that the children are in such imminent danger pursuant to the requirements of New York statutes and caselaw so as to warrant this court's involvement.

Although it is undisputed that the alternating two month visitation schedule generated by the Nevada court is wreaking havoc on the emotional lives of these very young children and would appear not to be in the best interests of A and J, that in itself is not reason to relinquish Nevada of its jurisdiction over the parties and authority to determine or modify all custody and visitation issues, if said parties were represented by counsel, and/or submitted themselves to the jurisdiction of the court and afforded due process under the law.

This court is aware of the fact that it took the Nevada court ten months to produce a formal order of custody from the time originally issued (5/13/2004) but there are no legally satisfactory proofs that such order should be viewed suspiciously or was improperly issued (plaintiff has not demonstrated that the 3/8/2005 order, albeit without a Notice of Entry of Order, affidavit of service - at least not any submitted to this court - or judge's actual signature requires a vacatur of the order pursuant to Nevada law); in fact, more importantly, both the court minutes and the 3/8/2005 order indicate that both parties were present, represented by counsel and agreed to the terms of the order. As such, this court finds it curious that plaintiff never submitted an affidavit from her Nevada counsel - Jeffrey Messmore, Esq. - attesting to the fact that he was not present in court on that day in question when plaintiff claims she was not represented by counsel and/or never consented to the visitation order. If plaintiff is suggesting that the Nevada courts, her attorney and her husband's attorney conspired to issue an order favorable to the defendant and in the absence of plaintiff, she has failed to submit adequate proofs.

Plaintiff has also failed to submit legally sufficient proofs to substantiate her charge that the children are being abused sexually, mentally and emotionally by her ex-husband and his wife.

The provisions of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Domestic Relations Law, Article 5-A), are determinative of whether this court may accept jurisdiction under the circumstances of abuse alleged in this custody dispute. In order to do so, the court must meet at least one of four conditions enunciated in Section 76 of the UCCJEA. The criteria relied on by plaintiff is clearly that which allows a court to exercise jurisdiction and override the authority of the foreign state where it is necessary to protect the child in an emergency. DRL Sec. 76(b)(ii). The emergency basis for applying jurisdiction demands that the plaintiff "demonstrate that the child will somehow suffer emotionally or physically if jurisdiction is not exercised." See, Gomez v. Gomez, 86 A.D.2d 594, 446 N.Y.S.2d 127. The Second Department in Conticello v. Conticello, 91 A.D.2d 1008, 1009, 457 N.Y.S.2d 876 ruled that "emergency" means "immediate crisis"; the First Department in Michael P v. Diana G, 156 A.D.2d 59,66, 553 N.Y.S.2d 689 ruled that "emergency" means "imminent and substantial danger" to the children. And, the Court of Appeals, in 1978 referred to the emergency requirement as a situation of immediate physical and mental welfare of the children requiring, vitally and directly, that the children be retained in the jurisdiction where the application for custody modification is made. See, Martin v. Martin, 45 N.Y.2d 739, 380 N.E.2d 305, 408 N.Y.S.2d 479.

This court believes that the parties in the instant action are not at odds as to the UCCJEA's legal requirements for transferring jurisdiction to New York by virtue of "emergency." The parties, are, however, in disagreement as to whether or not there exists "imminent and substantial danger" to A and J in the case at bar. This court is constrained to find, as noted hereinabove, that they are not. Plaintiff has offered the testimony of the children's mother and grandmother, each of whom related comments they heard and which were made by the children about being hit by their father and stepmother, and about the inappropriate sexual contact of the child J by the defendant's wife. Plaintiff also offered the sworn testimony of a New York psychologist - Dr. Christopher Turner - who, after treating the children for approximately eleven sessions, and with full knowledge of the children's statements, was unable to say that there existed any hard evidence of abuse. Dr. Turner did note that there was a possibility of inappropriate treatment of the children while in Nevada and that it should be investigated. It is here that the court must note that Dr. Turner reported the comments made by the parties' children to the child abuse state registry and currently, as a result of his communication, Nevada is investigating the defendant and his wife, with officials already having made at least one home visit. Documentary evidence also included the introduction of a report by Nevada psychologist Dr. Jo Velasquez who saw the children on one or two occasions at the request of the defendant. Her evaluation indicated that the children were abnormally anxious and fearful and recommended an alteration of the existent visitation arrangement; no references were made as to any parental abuse.

While this court cannot know with any degree of certainty what takes place in the privacy of the parties' homes, it is obvious that claims of abuse are extremely serious and can affect the lives of those accused forever. In this case, this court is satisfied that the issues of abuse raised by the plaintiff are being addressed in Nevada; there is no reason to believe that the Nevada authorities are not competent to conduct such an investigation. (Dr. Turner, upon cross-examination confirmed such belief). Furthermore, there has been no satisfactory corroboration of the claims of abuse allegedly committed by the   defendant.

What can be said however, with absolute certainty at this juncture, is that the custody/visitation arrangement entered into by the parties is dysfunctional for the children. Hopefully, it will be revisited, by the Nevada courts.

New York courts cannot, as desired by the plaintiff, be the arbiters of who is the better parent or whether or not it would be in the children's best interests to live with one parent or the other. The only question this court was required to answer was whether New York State had the power to exercise jurisdiction under the emergency basis of the UCCJEA, in order to consider the propriety of the custody arrangement. See, DePasse v. DePasse, 70 A.D.2d 473, 421 N.Y.S.2d 497; Conticello, supra, at 1009.

In conclusion, facts presented to this court did not demonstrate an immediate and significant peril to A and J well-being warranting intervention. It is possible that following further court action in Nevada, plaintiff would be awarded custody of the children, prevailing on her arguments that a two-month rotating schedule is harmful. But that is a best interests test argument reserved for an evidentiary hearing on the substantive custody issues in the home state of Nevada.

Accordingly, this court's stay issued in the plaintiff's Order to Show Cause is terminated; the parties are directed to follow the visitation schedule set down in the Nevada court's order. The instant Order to Show Cause is hereby denied; defendant's cross-motion is granted to the extent that this proceeding is dismissed and the parties are to abide by the existing Nevada custody order and to seek further relief from the Nevada court. This court declines to award costs or legal fees.

This constitutes the decision and order of the court.

ENTER

J.S.C.