by Jeremy D. Morley
The Uniform Child Custody Jurisdiction and Enforcement Act and the Hague Convention on the Civil Aspects of International Child Abduction need to be applied consistently with each other -- or there can be serious confusion and unfairness.
A very recent New York case, Krymko v. Krymko , (App.Div. 2d Dept., 9/19/06), demonstrates the sensible application of the two laws in an integrated fashion.
A married couple moved with their young child from their home in Ontario, Canada to New York in mid-2004. After about five months in New York the mother took the child back to Canada without the father’s consent and she promptly initiated a custody action in Toronto, Ontario.
The father thereupon instituted suit for custody in New York. He also applied for the return of the child under the Hague Convention and instituted a Hague Convention case in Ontario.
In April, 2005, the Ontario court ruled that the child had been “habitually resident” in New York on the day that she was taken back to Canada. Accordingly, the Ontario court ordered that the mother return the child to New York.
The mother brought the child back to New York but asked the New York court to dismiss the New York custody action on the ground that New York was not the “home state” of the child under the UCCJEA.
The UCCJEA defines the "home state" as "the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding . . . A period of temporary absences of any of the mentioned persons is part of the period." (New York’s Domestic Relations Law Sec. 75-a(7))
The mother claimed that at the time that the New York case had been commenced, the child had been in New York for only five months before being taken back to Canada. The father claimed that the time before the child went to Canada was six months, not five.
The Appellate Division held that, even if the time in New York had been only five months, the subsequent stay in Toronto followed a removal that the Ontario court had determined was wrongful within the meaning of the Hague Convention. Accordingly, it should be deemed to be a “period of temporary absence” within the meaning of the UCCJEA, which should be added to the prior period of five months so as to constitute the required six-month period.
In this regard, the Court held -- citing cases in Indiana and Texas (Ortman v. Ortman, 670 NE2d 1317 (Ind); Matter of Lewin, 149 SW3d 727 (Tex]) -- that “[t]he appellant may not decide the timing and forum of the custody proceeding through wrongful removal of the child from the jurisdiction.”
The Second Department ruled that, in any event, Ontario’s Hague return order meant that Ontario had deferred jurisdiction to New York and that substantial evidence was available in New York so that, even if the six month rule had not been satisfied, a New York court had jurisdiction to make an initial custody determination under Domestic Relations Law Sec. 76.
The case illustrates the need for counsel to consider the UCCJEA and the Hague Convention together when handling international child abductions cases in this country.