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FATHER, WHO LIVES IN CALIFORNIA, SOUGHT MODIFICATION OF THE CALIFORNIA CUSTODY ORDER; MOTHER, WHO LIVES IN NEW YORK, SOUGHT MODIFICATION OF THE CALIFORNIA ORDER IN NEW YORK; FAMILY COURT CORRECTLY COMMUNICATED WITH THE CALIFORNIA COURT BUT DID NOT ALLOW THE PARTIES TO PRESENT FACTS AND LEGAL ARGUMENTS BEFORE DISMISSING THE NEW YORK PETITION; FAMILY COURT REVERSED (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court did everything right in dealing with the modification of a California custody order, including communication with the California court, but did not allow the parties to present facts and legal arguments before ruling New York did not have jurisdiction. Father was in California and mother was in New York. Father sought modification of the custody order in California and mother sought modification of the custody order in New York:

“If the court 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 id. § 77-f …). “If the court of the state having jurisdiction substantially in accordance with [Domestic Relations Law article 5-A] does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding” … .

When a court, acting pursuant to these provisions, communicates with a court of another state on substantive matters, it must make a record of the communication, promptly inform the parties of the communication, and grant the parties access to the record … . The court may, in its discretion, allow the parties to participate in the communication, but “[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” … .

… [A]fter providing that information to the parties, who had not participated in the communication, the court immediately announced its decision on the issue of jurisdiction, without affording the parties an opportunity to present facts and legal arguments. This did not comport with the requirements of Domestic Relations Law § 75-i(2), and, under the circumstances of this case, requires reversal  … . Matter of Touchet v Horstman, 2022 NY Slip Op 04633, Second Dept 7-20-22

Practice Point: When a New York resident seeks modification of an out-of-state custody order, Family Court must communicate with the out-of-state court about whether the New York petition should be dismissed. Where the parties did not participate in the communication, before ruling, Family Court must allow the parties to present facts and legal arguments. Here the court’s failure to allow the parties to present facts and legal arguments required reversal.

 

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