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New York and Italian Law Blog

Wednesday, March 14, 2012

Italian Custody Order Recognized in New York Family Court under the UCCJEA

The New York County Family Court recently held that that an Italian Court which issued the initial custody order in respect to the parties’ child, maintained exclusive and continuing jurisdiction over the matter. Further the New York Court held that it did not have the jurisdiction to consider or modify the Italian mother’s New York custody petitions.

In rendering its decision, the New York Family Court specifically took into consideration the undisputed fact that the Italian father had previously obtained an Italian Order from a Florence Court which had awarded him sole custody of the parties’ child. The New York Court found that the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") applied to this Italian family law matter. Therefore, the New York Court stated the Italian Custody Order must be treated in the same manner as if it were issued by a State of the United States. The New York Family Court stated in relevant part:

“Because the Italian courts issued the initial custody order, Italy possesses exclusive, continuing jurisdiction. The ensuing and numerous subsequent orders by the Italian courts, both trial and appellate, should properly be viewed as modifications of the initial Italian order. The Italian courts had continuous, exclusive jurisdiction to modify the original Italian order because the father has been a continuous resident of Italy since the year 2000, notwithstanding the mother’s and child’s primary residence in New York between 2006 and 2010.”

The full text of the case was as follows:

In the Matter of Maura B. v. Giovanni P., [Index Number Redacted by Court], New York County Family Court

Decided: February 7, 2012

I. ISSUE

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In this international custody dispute, the petitioner mother asks this court to assert jurisdiction and ultimately determine that she should have sole legal and residential custody of the subject child. The respondent father argues that this court lacks jurisdiction to modify prior Italian court orders, and further seeks enforcement of the latest order issued by the Italian courts.

The basic legal issue concerns the international application of the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), contained in Domestic Relations Law ("DRL") Article 5-A, to the historical circumstances of this case.

II. HISTORY AND BACKGROUND

The procedural history relevant to the jurisdictional issue, although convoluted, is largely undisputed:1

The mother, Maura B., is an Italian citizen and also a permanent resident of the United States. The father, Giovanni P., is a dual United States and Italian citizen. The subject child, C., born in the United States on March 22, 1999, is a dual United States and Italian citizen.

The parents and child lived together in Italy from 2000 to 2005, when they separated. On June 29, 2005, the Court of Florence, after proceedings, issued an order awarding sole custody to the mother, and detailed a visitation schedule for the father. (The order also provided for legal marital separation, child support, and an award of the marital residence.)

In June, 2006, the mother relocated to New York with C. The mother (a psychiatrist, as is the father) obtained academic employment at Columbia University. The child was enrolled in school in Manhattan, and mother and child continuously lived in New York City until the summer of 2010. The father has remained a resident of Italy since 2000.

On October 24, 2006, a different judge in Florence re-addressed the case, disapproving of the mother’s unilateral relocation to New York but also noting the mother’s serious allegations of violence by the father towards her and the child. That judge issued a new order stating that residential custody shall remain with the mother and modified the visitation schedule for the father to take into account the mother’s relocation with the child to New York. The father appealed.

On March 29, 2007, a panel of the Court of Florence reviewed the prior orders. In a decision and order the panel: re-confirmed that residential custody would remain with the mother despite her continued presence with the child in New York; noted that it was unclear how long the stay abroad might be, and that if extended it may need to be further reviewed at a later point; modified the father’s visitation schedule; and held that a change in Italian law required that the parents have joint legal custody.2

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On September 17, 2009, the Court of Pisa, after a hearing on the father’s application for a change of custody, denied his request, noting that the child was doing well living with her mother in the United States and that a "radical" relocation back to Italy might have negative consequences.

On May 3, 2010, the Court of Pisa again continued primary residential custody with the mother in the United States, set another visitation schedule for the father, reiterated the child’s strong and positive integration and ties in the United States, and further cited the opinion of a court-appointed clinician that uprooting the child could be damaging.

In the summer of 2010, pursuant to the existing Italian visitation order, the child visited her father in Italy. In the father’s own words in papers filed with this court, he stated that at the end of August 2010 "…C. decided to remain with me in Italy. While I tried to persuade C. to return to the United States, in accordance with the [order], C. refused to return to her mother’s residence. I enrolled C. in school in Italy…."

On September 17, 2010, the Court of Pisa rejected yet another application by the father for a change in custody. The court noted but gave little weight to the child’s stated preference to remain in Italy, observing that she commonly said this when having to return to her mother, but was happy and well-adjusted in the United States.

On October 1, 2010, the Appellate Court of Florence, after reviewing the prior orders, denied the father’s appeal and observed that the child’s wish to stay with her father occurred for no particular reason other than that she was with her father at that time, and that her lengthy residence in the United States should not be interrupted. However, the court scheduled a further hearing for late November.

Subsequently, on November 5, 2010, the Court of Pisa, acting to enforce its prior order in the face of the father’s retention of C., ordered Italian officials to assist in returning the child to the mother so that both could return to New York. In accordance with that order the mother, now in Italy, on November 16, 2010, went to pick up the child at her school. The father also arrived at the school, and a struggle ensued in the course of which the child received a bruise.

After the school incident, the Appellate Court ordered a forensic evaluation of the family. The mother told the court that she would maintain the status quo, that is, the child would remain in Italy pending completion of the evaluation. The mother claims the reason she agreed to forensics was that the exam was the only way she could see her child whose access was being denied by the father.

On March 8, 2011, prior to the Appellate Court rendering a decision and prior to the final issuance of the forensic evaluation reports, the mother went to the maternal grandfather’s Italian residence and secured physical custody of C. A few days later, on March 13, 2011, the mother removed the child from Italy, both returning to New York where they continue to reside to this day.

On May 13, 2011, the Appellate Court of Florence issued a lengthy decision and order that

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modified the Court of Pisa orders. The Appellate Court awarded sole custody to the father and provided for visitation for the mother.3 The decision relied heavily on two factors, first, the forensic evaluations, and second, the mother’s behavior in Italy in the months following the father’s retention of the child. The court reviewed the forensics in detail, and accepted the opinion of the court-ordered expert that the mother was alienating the child from the father and that the child strongly and repeatedly wished to remain in Italy with her father. (The mother’s retained expert disputed this opinion, arguing to the contrary that there was no alienation, but simply the common wish of a child on vacation with a non-residential parent to remain with that parent.)4 The Court also strongly disapproved of the mother’s behavior during her attempts to retrieve the child on November 16th and March 8th, and, not surprisingly, was very displeased by the mother leaving Italy with the child on March 13th, after representing to the court that she would not do so.5

III. LEGAL FRAMEWORK

UCCJEA section 75-d specifically requires the New York courts to treat a foreign country as if it were a state of the United States: that is, basic UCCJEA sections and provisions such as initial jurisdiction; the home state predicate; exclusive continuing jurisdiction; modification jurisdiction; simultaneous proceedings; communication between courts; as well as recognition and enforcement of foreign decrees, apply to most New York custody matters involving other states and foreign countries.

Generally, jurisdiction to make an initial child custody jurisdiction is based on the state, or foreign country, being the home state, that is, where the child lived with a parent for six consecutive months prior to the first custody proceeding. DRL sections 75-a and 76.

DRL sections 76-a and 76-b address modifications of initial (original) custody determinations: Section 76-a essentially provides that the jurisdiction that made the initial custody determination has "exclusive, continuing jurisdiction over the determination" unless that jurisdiction determines that there is no longer a significant connection with and evidence in that jurisdiction, or a court of either jurisdiction determines that neither the child and any parent reside in the jurisdiction that made the original determination.

Section 76-b entitled "Jurisdiction to modify determination" provides that:

[A] court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under…section seventy-six of this title and:

1. The court of the other state determines that it no longer has exclusive, continuing jurisdiction under section seventy-six-a of this title or that a court of this state would be a more convenient forum under section seventy-six-f of this title; or

2. A court of this state or a court of the other state determines that the child [and] the child’s parents do not presently reside in the other state.

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The remaining relevant UCCEA sections in the DRL involve section 76-f setting forth variables that relate to an inconvenient forum analysis; section 76-i mandating or encouraging communication between states to help resolve jurisdictional issues; and sections 77-b, 77-d, and 77-e providing for a New York duty to enforce valid, registered foreign custody decrees as if they were the same as New York orders (unless an objection that the issuing court did not have jurisdiction is sustained).

IV. ANALYSIS

It is undisputed that Italy issued the initial custody determination in this case. That initial order was the June 29, 2005, order by the Court of Florence noted above that granted the mother sole custody of the child. The mother suggests that the October 24, 2006, order by the Court of Florence permitting her to continue to reside in New York may be the controlling initial custody order. Regardless of whether the 2005 or the 2006 order is said to be the initial order, it is also undisputed that at the time the Court of Florence issued its initial order the court had valid jurisdiction under Italian law, and that the order also was consistent with the provisions of New York’s UCCJEA.

The various applicable sections of the UCCJEA, noted above, are interlocking which can be a source of complication. For a good review of the sections, see generally Sobie, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law Article 5-A (2010) ("Commentaries"). Even though the procedural history of this case is lengthy, the application of the basic principles of the UCCJEA is clear:

Because the Italian courts issued the initial custody order, Italy possesses exclusive, continuing jurisdiction. The ensuing and numerous subsequent orders by the Italian courts, both trial and appellate, should properly be viewed as modifications of the initial Italian order. The Italian courts had continuous, exclusive jurisdiction to modify the original Italian order because the father has been a continuous resident of Italy since the year 2000, notwithstanding the mother’s and child’s primary residence in New York between 2006 and 2010.

The combined effect of DRL sections 76-a and 76-b is aptly summarized, with some repetition, in the Commentaries at pp. 499 — 507:

Only the state [or foreign country] which entered the original custody order can determine whether to surrender exclusive continuing jurisdiction. It maintains a monopoly….When a different state [or foreign country] possesses exclusive jurisdiction New York cannot take jurisdiction unless the foreign state declines, even though the parties clearly no longer have a significant connection with that state and there is an absence of relevant evidence in the foreign forum….There is no recourse when a recalcitrant state refuses to yield….[A] state which maintains exclusive, continuing jurisdiction may entertain and determine a modification action. No ifs, ands, or buts….[I]f one parent or the child is a resident of the [foreign] country which issued the initial decree, or when relevant, the last modification, New York cannot accept jurisdiction unless the country in question declines.

It must be emphasized that to this date New York has never issued a custody determination in

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the instant case; Italy is the only jurisdiction that has issued custody orders.6

The only way New York could assume jurisdiction in this case is if Italy declines jurisdiction. Accordingly, pursuant to DRL section 75-i, on August 18, 2011, this court wrote a detailed letter to Luigi Grimaldi, the Presiding Judge of the Appellate Court of Florence, the court that issued the May 13, 2011 decision and order awarding custody to the father, asking whether the Italian courts would consider declining jurisdiction for any reason, including the ground of inconvenient forum. Judge Grimaldi responded on September 15, 2011, stating that Italy would not decline jurisdiction. Judge Grimaldi said, inter alia, that "…our courts were the first to assume responsibility for the case and likewise because this child has lived in Italy for most of her life….7

The Commentaries at pp. 501-502 note that a declination of jurisdiction is common in the United States when the child and custodial parent have lived in a different state or country for some time, as is the circumstance here where mother and child resided in New York between 2006 and 2010. Yet it also true that as Sobie notes at p. 502, a refusal to decline jurisdiction when circumstances otherwise warrant may be "inequitable" but the result would stand under the UCCJEA. As late as November 1, 2010, the Appellate Court of Florence denied the father’s appeal for a change of custody citing the "…years of residing with the mother…." among other reasons. Nonetheless, only seven months later the Appellate Court reversed itself and awarded custody to the father on May 13, 2011.

Consequently, the merits of the May 13, 2011, Italian decision and order are quite troublesome given the child’s prior lengthy and apparently very satisfactory residential custody with the mother.8 Whether it is inequitable is arguable. The intervening events involving the mother’s conduct in Italy after November 1, 2010 — on November 16, 2010, on March 8, 2011, and on March 13, 2011, when she left Italy with the child, as well as the forensic evaluations as described by the court — had a major effect on the views of the Appellate Court of Florence. And, however much one may disagree with the result, one can not say that the Appellate Court did not carefully detail its reasoning in its twenty-six page decision on May 13, 2011.

That said, the merits of the May 13, 2011 Appellate Court of Florence decision are not the relevant variable before this court. The issue of jurisdiction is the sole issue before this court.

The mother argues that although Italy issued the initial custody determination on October 24, 2007, New York became the child’s home state six months later, that is, from April 27, 2007 to the present (a fact not affected by the father’s wrongful retention of the child in the fall of 2010). Therefore, the mother says, Italy lacked jurisdiction after April, 2007, and its orders, including the May 13, 2011, order awarding the father custody are invalid.

The mother’s argument is incorrect and would have the effect of eviscerating the provisions of DRL sections 76-a and 76-b, supra, concerning exclusive continuing jurisdiction and modification jurisdiction. Her argument conflates "home state" to make an initial child custody jurisdiction (DRL section 76) with "home state" defined to mean any six month period where the child later continuously lived. It is the former home state definition the controls.

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The mother relies on In re McC. v. Manuel A., 48 AD3d 91 (1st Dept. 2007). In that case, also involving Italy, a divided court opined on issues of home state and exclusive continuing jurisdiction. The case is reviewed in the Commentaries, supra, at 506-507. Because of its complex fact circumstances, the precedential value of this case to the instant case is, at most, unclear. More to the point regarding continuing and modification jurisdiction are Stocker v. Sheehan, 13 AD3d (1st Dept. 2004) and Grahm v. Grahm, 13 AD3d 324 (1st Dept. 2004), clearly indicating why there is no subject matter jurisdiction in this case.

For the foregoing reasons, this court is constrained to decide that New York currently does not have jurisdiction to entertain the mother’s new or modification custody petitions, and such petitions are therefore dismissed.

Further, this court has a duty to enforce the registered May 13, 2011 order of the Appellate Court of Florence. See DRL sections 77-b and 77-d. The mother’s objection to registering the order is denied. Consequently, in accordance with that order, this court is required to so order a transfer of physical and legal custody to the father. It is hoped that the parties, their counsel, and counsel for the child can arrange for an orderly transition consistent with the best interests of the child.

Given the historical circumstances of this case, the orders of this court are stayed until c/o/b February 22, 2012, so that any party or the subject child may seek appellate relief.

 

1. 143 exhibits were admitted in evidence by stipulation, and are listed in a 27 page document signed by counsel containing a date and summary of the nature of the exhibit. Many of the exhibits are court documents/orders, but there are also letters, e-mails, affidavits, police reports, forensic reports, etc.

2. The March 29, 2007, Italian order was subsequently registered in New York on October 15, 2007. See DRL section 77-d.

3. The May 13, 2011, Italian order was subsequently registered in New York by New York County Family Court on August 30, 2011. The mother is contesting the validity of this registration on jurisdictional grounds. See DRL section 77-d(4)(a).

4. The mother’s expert also referred to the father’s "seductive" behavior in persuading his daughter to remain with him after the vacation period ended.

On September 8, 2010, a Dr. Gabrielle Silver, an Assistant Professor of Psychiatry at Payne-Whitney (Cornell) in Manhattan, who treated C. in 2007 and 2009-2010, issued a report stating that the child was doing very well in New York; that the child said she was consistently happy in New York and that her New York home was "warm and loving", including a good relationship with her mother and sister; and that the doctor was surprised at any indication that the child did not want to return to the United States, a development called "concerning". This report was not noted in the May 13, 2011, Appellate Court decision notwithstanding its extensive discussion of the forensics conducted in Italy.

Interestingly, regarding the "alienation" by the mother emphasized by the Appellate Court, were a serious of emails/ text messages from the father to the child in September, 2011, when the child continued to reside with the mother in New York. Among the excerpts include: "…you have to make a lot of confusion or the judge could decide to leave you where you start the school. Don’t go to school or do something really big….You have to tell everyone that [your mother] is mean and that she stops you from seeing your father and your sister!….If you say that [your mother] maltreats you they will send you back to me….Say that you prefer to stay with someone else rather than your mother…."

5. The November 16th and March 8th incidents had in common the mother’s efforts to retrieve her daughter and remove her from her current living situation. There were witnesses to both incidents and police officials became involved. The Appellate Court concluded from the evidence that during each incident the mother’s behavior was forceful, inappropriate, and contrary to the child’s expressed wishes. Conversely, the mother had a more benign view of her motivation and behavior.

The preliminary, final, and rebuttal forensic reports were all dated in April, 2011. The mother makes the somewhat arcane point that although she did leave Italy with the child in March, 2011, all the forensic "data" had already been "collected" and therefore she "…did not remove C. from Italy prior to the forensics being completed".

6. The sole exception is that in the summer of 2007 another judge of this court, acting under the DRL section 76-c "Temporary emergency jurisdiction" provision, temporarily suspended the father’s visits, which order was followed by a consent order to modify the summer visitation schedule. These changes were in effect only for that summer. As is well known, and noted in the Commentaries at p. 516"…emergency jurisdiction is temporary. The intent is to permit intervention by a court which would otherwise lack jurisdiction, pending initiation of proceedings in a court which possesses permanent jurisdiction".

In addition, as is customary, the court issued orders during the pendency of this proceeding to preserve the status quo.

7. The latter part of this statement appears to be inaccurate: the record indicates the child spent roughly half her life in Italy and the other half in the United States. Moreover, the more recent half of her life was spent in the United States.

8. See note 4, supra

 

The above mentioned  case is posted for informative purposes only.  The posting of this case does not in any way reflect Marzano Lawyers PLLC’s legal opinion or view on the underlying matter. Furthermore, this law firm, nor any New York or Italian attorney or lawyer affiliated with this law firm, did not represent any of the  parties in the action.

 




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