Mark A. Feldman, Brooklyn, for petitioner.
Leonard W. Jones, Brooklyn, for respondent.
Children's Law Center, Brooklyn (
Pamela Branch of counsel),
Law Guardian.
OPINION OF THE COURT
DANIEL TURBOW, J. Petitioner Deborah Dean is the mother, and respondent George Crane is the father of Robin Crane, who was born on March 16, 1989. Petitioner has moved to vacate a final order of Family Court, Queens County, which granted respondent custody of Robin and to have physical custody returned to her as was previously required by an order of the District Court of Colorado. Alternatively, she seeks to have the matter "referred" to the Colorado court for consideration. For the reasons set forth below, the motion is granted to the extent of directing that a plenary fact-finding hearing be had in this court to determine which parent is entitled to a final order of custody under the "best interests" tests prescribed by the Court of Appeals. (See, e.g., Eschbach v Eschbach, 56 NY2d 167 [1982]; Friederwitzer v Friederwitzer, 55 NY2d 89 [1982].) In all other respects the motion is denied.
However, that Order was entered on default, with the mother never having had the opportunity to challenge the merits of the father's claim to custody. By the same token, the initial Colorado order was entered without the benefit of a fact-finding. Given all these circumstances, as well as the mother's alleged recovery from her automobile accident and the other matters relating to the parties' relative fitness as set out in their affidavits, it is apparent that a plenary best interests hearing to determine custody is required. (See, e.g., Eschbach v Eschbach, 56 NY2d 167 [1982], supra; Dente v Dente, 225 AD2d 544 [1996]; see also, Adams v Adams, 255 AD2d 535, 536, supra [a more liberal standard is applied in addressing motions to vacate defaults in custody and support disputes, "`favoring dispositions on the merits'"].) The court further concludes that such a hearing should take place in New York, rather than in Colorado. (See, Domestic Relations Law § 75-h.) Although the issue is a close one, the court finds that, given the fact that the child has been in New York with the father for nearly two years now, and is attending school here, it cannot be said that "`substantial evidence concerning the child's present or future care, protection, training, and personal relationships is more readily available in'" Colorado. (See, Matter of Vanessa E., 190 AD2d 134, 138, supra.) Moreover, for the reasons stated, the most recent valid order governing custody is the one issued by the New York court. And, while Judge Simmons of the Colorado District Court has not declined jurisdiction over the matter per se, he did suggest that, given the circumstances outlined above, it would likely be preferable for the matter to be resolved in this forum. CONCLUSION The motion to vacate is granted to the extent stated and otherwise denied. [1] The parties' names have been changed for purposes of publication. [2] The Law Guardian has asserted that this court should not consider the motion to vacate the Queens Order because CPLR 5015 (a) ostensibly requires that it have been made in the issuing court. (See, Hrouda v Winne, 77 AD2d 62 [3d Dept 1980]; Matter of Hrouda v Winne, 112 AD2d 304 [2d Dept 1985].) The court declines to accept this argument, which raises form over substance and common sense, for a variety of reasons. First, given respondent father's current Brooklyn residence, petitioner's underlying modification petition is appropriately before this court. Because the petition to modify and the motion to vacate the Queens Order rest on closely related arguments, to accept the Law Guardian's contention would require that petitioner litigate similar claims simultaneously in two different courts. Second, the Queens County Family Court is in no better position to decide the motion to vacate than this court since the Judge who issued the original Queens Order is no longer sitting on that Bench. Finally, the only party who might have a substantive complaint about having the vacatur motion in the wrong forum—the father—has not raised any such objection.
FACTS
The mother and father were married on September 4, 1987 and divorced pursuant to a decree of District Court, El Paso County, Colorado, entered on or about July 24, 1996. That decree incorporated the terms of a separation agreement which provided that the parties were to share joint legal custody of Robin, but that her primary residence was to be with the mother. The agreement also provided that the Colorado court was to retain continuing personal jurisdiction over the parties and subject matter jurisdiction over disputes relating to the enforcement of the agreement. On or about March 18, 1998, the mother suffered a near fatal car accident in Colorado. On or about March 22, 1998, Robin left her Colorado home for a previously scheduled visit with her father, who was then residing in Queens County, in New York City. The visit was to conclude on March 28, 1998. On March 27, however, the father filed a petition in Family Court, Queens County, seeking custody of Robin. The mother exercise jurisdiction, he would be prepared to assume jurisdiction and hear the case, so that the parties would not be left without a source of substantive relief.
DISCUSSION
Contrary to the mother's position, it is clear that the Queens County Family Court had subject matter jurisdiction to issue its Order. Domestic Relations Law § 75-d (1) (c) (ii) grants the Family Court subject matter jurisdiction to deal with custody matters where "the child is physically present in this state and * * * it is necessary in an emergency to protect the child." It is plain that the evidence made available to the Queens County Family Court on its face justified the exercise of jurisdiction under that section. That evidence, including the reports of social worker Roberman and ACS, supported the father's allegation that the child had been repeatedly exposed to acts of serious domestic violence visited upon the mother. There is little question that, if true, such exposure places the child's physical and emotional well-being at substantial and immediate risk. Indeed, it can provide the predicate for a finding of neglect. (See, e.g., Matter of Athena M., 253 AD2d 669 [1st Dept 1998] ["evidence of acts of severe violence between respondents in the presence of their children is sufficient to show, `as a matter of common sense', that the children were in imminent danger of becoming impaired within the meaning of Family Court Act § 1012 (f) (i) (B)"].) Moreover, the evidence presented and the petition's allegations were uncontested by the mother at the time of the court's consideration of the petition. Clearly, under these circumstances, "emergency jurisdiction" existed under section 75-d and empowered the court to issue its Order. As the First Department has stated: "[O]nce an emergency is found to exist, the court has jurisdiction and is empowered to determine the issue of child custody. The emergency and the child's safety outweigh all other considerations." (Matter of Vanessa E., 190 AD2d 134, 137 [1st Dept 1993].) A different conclusion is not mandated by the fact that the parties were apparently subject to the jurisdiction of the Colorado court at the time the Queens County Family Court considered the matter. It is true that, by its terms, the PKPA provides that a court of one State may modify the preexisting custody determination of another State only if, inter alia, "the court of the other State no longer has jurisdiction, or * * * has declined to exercise such jurisdiction to modify such that the mother had not waived that infirmity by participating in the proceeding without protest. (Supra, at 595 ["Although the mother did not contest in personam jurisdiction and waived her objection by interposing a cross application * * * subject matter is not waiveable"].) Here, by contrast, as discussed fully above, subject matter jurisdiction—in the form of "emergency jurisdiction"—did exist at the time the father brought his proceeding. The mother's true substantive objection is the failure of the Queens County Family Court to apply the PKPA—and that objection should and could have been raised at the outset of the Queens proceedings. Her failure to do so operates as a waiver of that nonjurisdictional objection. (Cf., CPLR 3211 [e].) The court thus finds that the Queens County Family Court had jurisdiction over the dispute sufficient to issue its Order and denies the motion to vacate the Queens Order on jurisdictional grounds.