New York Divorce Custody Maternal Grandmother Ex Parte Physical Custody Reasonable Notice Parental Rights Lawyers Attorneys
February 15, 2011 by Divorce Bin
Filed under divorce stats
New York Divorce Custody Maternal Grandmother Ex Parte Physical Custody Reasonable Notice Parental Rights Lawyers Attorneys
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Home Page > Law > Health and Safety > New York Divorce Custody Maternal Grandmother Ex Parte Physical Custody Reasonable Notice Parental Rights Lawyers Attorneys
New York Divorce Custody Maternal Grandmother Ex Parte Physical Custody Reasonable Notice Parental Rights Lawyers Attorneys
Posted: Oct 13, 2010 |
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In the Matter of Joel M., Petitioner, v. Karen M. et al, Respondents
Family Court of New York, Schoharie County
FACTS:
Petitioner father brings this proceeding pursuant to Domestic Relations Law §§ 75-n and 75-p for enforcement of an ex parte temporary order of the Superior Court of New Hampshire dated October 2, 1986, awarding him temporary custody of the two children of the parties.
ISSUES:
The issue here is whether or not the Superior Court of the State of New Hampshire in making the ex parte temporary order of custody was exercising jurisdiction substantially in conformity with the PKPA and the UCCJA.
DISCUSSION:
The applicable statutes as to interstate enforcement of custody determinations are the Federal Parental Kidnapping Prevention Act (PKPA), and the Uniform Child Custody Jurisdiction Act (UCCJA) — which has been enacted by both New York (Domestic Relations Law art 5-A) and New Hampshire (Rev Stats Ann §§ 458-A:12 — 458-A:25). To the extent that the requirements and/or procedures of the PKPA and the UCCJA do not directly conflict with one another, or the application of the UCCJA would not be inconsistent with the purposes and policies of the Federal act, the two statutes should be read together in the aggregate. However, under the supremacy clause of the United States Constitution, the Federal act clearly preempts applicable State law in the event of a direct conflict. Before making a decree under this article, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated, and any person who has physical custody of the child. A custody decree rendered by a court of this state which had jurisdiction under section seventy-five-d of this article shall be binding upon all parties who have been personally served in this state or notified pursuant to section seventy-five-f of this article or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. The purposes and policies of the PKPA and the UCCJA clearly do not extend to the enforcement of ex parte sister State orders made without any notice or opportunity to be heard; in fact, both the PKPA and the UCCJA expressly and explicitly require reasonable notice and an opportunity to be heard as a condition of full faith and credit enforcement. This court recognizes that the State of New Hampshire is the marital domicile of the petitioner father and respondent mother, and recognizes that New Hampshire is clearly the “home State” of the children pursuant to the provisions of both the PKPA and the UCCJA. The ex parte temporary order of October 2, 1986 enjoins the defendant from removing the children from the State of New Hampshire at a time they had already been gone from New Hampshire for approximately three months. Perhaps the New Hampshire court was not fully appraised of the true situation — including the fact that the maternal grandmother then had physical custody of the children in New York State. This Court can recognize and enforce a child custody determination made by the Superior Court of the State of New Hampshire after reasonable notice and an opportunity to be heard are granted to the respondent mother and the respondent maternal grandmother who has physical custody of the children.
JUDGMENT:
The court denied and dismissed the father’s petition against the mother to enforce another state’s ex parte custody order that awarded temporary custody of the mother and father’s two children to the father.
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.
(ArticlesBase SC #3468410)
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Atchuthan Sriskandarajah -
About the Author:
The SRIS Law Group is a law firm with offices in Virginia, Maryland & Massachusetts. The law firm assists clients with criminal/traffic defense, family law, immigration, civil litigation, bankruptcy & military law. The law firm has Virginia offices in Fairfax County, Richmond, Virginia Beach, Loudoun County, Lynchburg County, Prince William County & Fredericksburg, Virginia. The Maryland offices are in Montgomery County & Baltimore. The Massachusetts offices are in Boston & Cambridge. The New York office is in New York City. The North Carolina Office is in Charlotte, NC which is in Mecklenburg County. The California office is in Orange County, CA.
The law firm has more than 11 offices in Virginia, Maryland, Massachusetts, New York, California, North Carolina & India to serve the clients of the SRIS Law Group.
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The SRIS Law Group is a law firm with offices in Virginia, Maryland & Massachusetts. The law firm assists clients with criminal/traffic defense, family law, immigration, civil litigation, bankruptcy & military law. The law firm has Virginia offices in Fairfax County, Richmond, Virginia Beach, Loudoun County, Lynchburg County, Prince William County & Fredericksburg, Virginia. The Maryland offices are in Montgomery County & Baltimore. The Massachusetts offices are in Boston & Cambridge. The New York office is in New York City. The North Carolina Office is in Charlotte, NC which is in Mecklenburg County. The California office is in Orange County, CA.
The law firm has more than 11 offices in Virginia, Maryland, Massachusetts, New York, California, North Carolina & India to serve the clients of the SRIS Law Group.
