Opinion
Argued October 15, 1997
Decided December 22, 1997
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered February 7, 1997, which modified, on the law, and, as modified, affirmed an order of the Supreme Court (Charles J. Siragusa, J.; opn 172 Misc.2d 507), entered in Monroe County, inter alia, granting the petition to the extent of ordering a hearing to determine whether an order of the Circuit Court for the County of Escambia, State of Florida, providing for visitation of the subject infant children with their mother in Florida should be modified, appointing a Law Guardian and a psychiatrist or psychologist, and denying respondent mother's request to dismiss the proceeding. The modification consisted of dismissing the petition in its entirety.
Gould Peck, Rochester ( Lewis J. Gould, Eric J. Metzler and Suzanne L. Amico of counsel), for appellant.
Harris Beach Wilcox, L.L.P., Rochester ( David C. Boysen and Laura J. Wilson of counsel), for Patricia Ann P., respondent.
The two petitioners are the children of the respondents. The respondents were married in 1980, and had three children, Sara, Sayeh, and Arash. Sara is now deceased. The respondents were divorced in 1986 in the Circuit Court, Escambia County, State of Florida. Pursuant to the divorce decree, respondent Patricia Ann P. (mother) was granted custody of the petitioners. She and the children continued to reside in the State of Florida while respondent Ahmad R. (father) relocated to Monroe County, New York. In September of 1988, while the petitioners were in the custody of the respondent mother, a male acquaintance, Raymond Wike (whom the children describe as a former boyfriend), removed Sayeh and Sara from their mother's house. He killed Sara in the presence of Sayeh by stabbing her and slashing her throat. He raped Sayeh and repeatedly stabbed her and slashed her throat, as well, in an attempt to kill her. She escaped being killed by playing dead. At the time, Sayeh was eight years old. A subsequent application to modify the custody arrangements of the 1986 divorce resulted in an order and judgment of the Circuit Court of Escambia County, Florida, dated June 7, 1989. In that judgment, the court found that there had been substantial and material changes of circumstances since the entry of the June 3, 1986 order, which rendered the terms of that order detrimental to the best interests of the minor children. This order changed custody to respondent father, who lived in New York, and established a visitation schedule which in essence granted respondent mother four weeks of visitation in the summer and one week during the Christmas holidays at her residence in Florida. After the entry of the order, petitioners moved to New York and have continuously resided here with the respondent father and his second wife. During the period from 1989 through 1993, petitioners maintained their visitation schedule as established by the 1989 Florida decree. At some time, however, subsequent to summer visitation in 1993, petitioners raised allegations of physical abuse at the hands of their mother. Respondent mother denied these allegations. The children have not visited their mother in Florida since the summer of 1993. Arash has not returned to Florida at all; Sayeh returned only for the purpose of testifying at various penalty phases of the trial of Mr. Wike. In December 1995, the mother brought a contempt proceeding against the father in the Florida Circuit Court, alleging that she was denied visitation with the children pursuant to the June 1989 order. The father was adjudicated in contempt of the June 1989 order by an order of the Florida Circuit Court entered May 28, 1996. The mother brought an emergency contempt proceeding in the Florida Circuit Court in June 1996 for the father's failure to comply with the May 1996 order. By order entered June 21, 1996, the father was adjudicated in contempt of the May 28, 1996 order. On June 21, 1996, the children commenced this proceeding to modify the June 1989 order by deleting the provision that grants the mother visitation with the children for four weeks in Florida and by allowing the mother to have visitation with the children in Monroe County, New York, as determined by the children. A temporary restraining order was entered prohibiting the removal of the children from Monroe County, New York. The mother moved to dismiss the present proceeding on numerous grounds, including lack of subject matter jurisdiction; she also raised several procedural challenges.
Supreme Court concluded that the New York courts have jurisdiction, directed a hearing on the petition, and rejected the mother's numerous procedural challenges.
The Appellate Division concluded, inter alia, that Supreme Court properly rejected the mother's numerous procedural challenges and found that under the Uniform Child Custody Jurisdiction Act (UCCJA), New York may validly exercise jurisdiction as the children's home State; that the Parental Kidnaping Prevention Act (PKPA), however, which preempts the UCCJA under the Supremacy Clause of the United States Constitution, requires the New York court to defer to the jurisdiction of the Florida courts; that under the PKPA, the New York court may not exercise jurisdiction to modify a Florida order unless the Florida court either no longer has jurisdiction or declines to exercise it; that the PKPA provides that the State that issued an order of custody continues to have jurisdiction if it has jurisdiction under its own law and if one of the contestants continues to reside in that State; that under Florida law, the Florida court continues to have jurisdiction and, as evidenced by its numerous orders, has not declined to exercise it; and that the Supreme Court erred in failing to defer jurisdiction to the Florida court under the PKPA and in failing to dismiss the New York proceeding. Matter of Mott v Patricia Ann R., 236 A.D.2d 819, affirmed.
MEMORANDUM.
The order of the Appellate Division should be affirmed, without costs. As New York's court of general original jurisdiction ( see, N Y Const, art VI, § 7; Judiciary Law § 140-b), and under the "home state" provisions of the Uniform Child Custody Jurisdiction Act (UCCJA) (Domestic Relations Law § 75-a et seq.), Supreme Court ordinarily would have subject matter jurisdiction over this Florida custody decree modification proceeding, as the children have been domiciled in New York for over eight years.
In the instant case, however, the Appellate Division correctly determined that the Federal Parental Kidnapping Prevention Act ( 28 U.S.C. § 1738A) preempts the UCCJA, and its continuing jurisdiction provisions require Supreme Court to defer jurisdiction over this custody modification proceeding to the Florida courts, which have declined to relinquish jurisdiction ( see, 28 U.S.C. § 1738A [c] [1]; [d], [f]; cf., Matter of Sayeh R., 91 N.Y.2d ___ [decided today]).
Since Supreme Court did not have subject matter jurisdiction, accordingly we need not reach any of the other issues raised by the parties below.
Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY concur.
Order affirmed, without costs, in a memorandum.