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