You are here: / / Family Court Did Not Follow Statutory Procedure Before Ruling the New York...
,

Family Court Did Not Follow Statutory Procedure Before Ruling the New York Court Did Not Have Subject Matter Jurisdiction in a Proceeding to Modify a New Jersey Custody and Visitation Order—A Proceeding to Modify the Custody and Visitation Order Was Pending In New Jersey at the Time the New York Proceeding Was Brought

The Second Department determined Family Court failed to follow statutory procedure when it determined the New York court did not have subject matter jurisdiction over a proceeding to modify a New Jersey custody and visitation order.  At the time the New York proceeding was brought there was a pending proceeding in New Jersey to modify the custody and visitation order. Before determining the jurisdiction issue, Family Court was required to (but did not) make a record of its communications with the New Jersey court, provide the record to the parties, and give the parties the opportunity to present facts and legal arguments (Domestic Relations Law 75-i, 76-b, 76-e). The case was remanded for that purpose:

A court of this state may not modify a child custody determination made by a court of another state “unless . . . [t]he court of the other state determines it no longer has exclusive, continuing jurisdiction . . . or that a court of this state would be a more convenient forum” (Domestic Relations Law § 76-b[1]…). ” Where a different state possesses exclusive, continuing jurisdiction, New York cannot take jurisdiction unless the foreign state declines, even [if] the parties clearly no longer have a significant connection with that state'” … .

Furthermore, “a court of this state may not exercise its jurisdiction . . . if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this article, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum” (Domestic Relations Law § 76-e[1]). “If the court [of this state] determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with [Domestic Relations Law article 5-A], the court of this state shall stay its proceeding and communicate with the court of the other state” (Domestic Relations Law § 76-e[2]; see Domestic Relations Law § 75-i[1]). “If the court of the state having jurisdiction substantially in accordance with this article does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding” (Domestic Relations Law § 76-e[2]).

With limited exceptions not applicable here, “a record must be made” of the communication between the two courts and “[t]he parties must be informed promptly of the communication and granted access to the record” (Domestic Relations Law § 75-i[4]). Furthermore, “[i]f the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made” (Domestic Relations Law § 75-i[2]). Matter of Frankel v Frankel, 2015 NY Slip Op 03530, 2nd Dept 4-29-15

 

You might also like
THE BANK DID NOT DEMONSTRATE THE ALLONGE WAS FIRMLY AFFIXED TO THE NOTE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).
No Liability to Third Party Stemming from Contract to Install a Sign
THE PARENTS’ INCOME WAS NOT PROPERLY CALCULATED FOR CHILD-SUPPORT PURPOSES (SECOND DEPT).
TIME TO SERVE DEFENDANT, WHO LIVED IN INDIA, IN THIS FORECLOSURE ACTION WAS PROPERLY EXTENDED IN THE INTEREST OF JUSTICE BUT SUPREME COURT SHOULD NOT HAVE DIRECTED AN ALTERNATIVE METHOD OF SERVICE, CRITERIA EXPLAINED (SECOND DEPT).
Ten Year Adverse Possession Period Began After Ten Year Permissive Use Period Expired
FAMILY COURT SHOULD HAVE GRANTED THE GUARDIANSHIP PETITIONS AND MADE FINDINGS ENABLING THE CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATE (SIJS) (SECOND DEPT).
ALTHOUGH THE PEOPLE PRESENTED EVIDENCE OF THE SHOWUP IDENTIFICATION AT THE SUPPRESSION HEARING, THEY DID NOT PRESENT ANY EVIDENCE OF THE INITIAL STOP OF THE DEFENDANT; THE PEOPLE DID NOT MEET THEIR BURDEN TO SHOW THE LEGALITY OF THE POLICE CONDUCT; SUPPRESSION SHOULD HAVE BEEN GRANTED (SECOND DEPT).
STORED SHEETROCK PANELS WHICH FELL OVER ON PLAINTIFF DID NOT CONSTITUTE THE KIND OF ELEVATION/GRAVITY-RELATED INCIDENT COVERED BY LABOR LAW 240(1) (SECOND DEPT). ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Family Court Should Not Have Directed that Visitation With the Father Be Only... Family Court Should Not Have Denied Child’s Motion for the Issuance of...