The Third Department, reversing Family Court, determined father’s petition should not have been dismissed on forum non conveniens grounds. Father, who is incarcerated, was entitled to six visits per year with the child. Mother, unbeknownst to father, relocated to Georgia and cut off all communication between the child and father:
[A “forum non conveniens”] determination “depends on the specific issue(s) to be decided in the pending litigation,” and must involve consideration of all relevant factors, including those set forth in the statute … .
Although Family Court articulated its consideration of each of the statutory factors, we disagree with the weight it accorded certain factors and find that it failed to view those factors in light of the sole issue to be decided in this proceeding, namely, whether the mother violated [the court order]. First, in considering whether the child or a sibling was the victim of violence, mistreatment or abuse that was likely to continue in the future … , Family Court found that the child was negatively affected by the father’s criminal actions, despite the fact that all of the parties agreed that this factor was not relevant, neither the child nor a sibling was involved in the 2008 [criminal case] case [against father] and Family Court had awarded the father six visits per year in 2011. Next, the father promptly commenced this proceeding four months after the mother relocated with the child … — which occurred without his knowledge or Family Court’s permission — and we find that the additional 12 months that it took to dispose of this proceeding does not militate in favor of finding that New York is an inconvenient forum. Further, the father and the paternal grandmother, whose testimony would be central to the issue of whether a violation occurred, are located in New York, and any testimony by the mother could be presented “by telephone, audiovisual means, or other electronic means” … . Matter of Snow v Elmer, 2016 NY Slip Op 07075, 3rd Dept 10-27-16
FAMILY LAW (FAMILY COURT DID NOT PROPERLY APPLY THE STATUTORY FACTORS, FORUM NON CONVENIENS FINDING REVERSED)/FORUM NON CONVENIENS (FAMILY LAW, FAMILY COURT DID NOT PROPERLY APPLY THE STATUTORY FACTORS, FORUM NON CONVENIENS FINDING REVERSED)