Lawyers Manual - Unified Court System

124 Mary Rothwell Davis
child, and determine a period for the duration of the temporary order.” 16
Accordingly, the Bronx IDV court held a telephone conversation, which was
transcribed by a court stenographer, with the judge in the Dominican Republic
who had issued the original custody decree. DRL § 75-i requires that such
communications be recorded, and that the parties be given an opportunity to
participate or present facts and argument concerning jurisdiction. The end result
was that the Dominican court declined to reassert jurisdiction, allowing that
New York was the better forum upon the assumption that both parents were now
domiciled in New York. The court also stated that it understood the parties’
custody agreement to allow custody to revert to the mother once she was settled
in the United States.
Determining Residence
Although the father attempted to argue that he was still domiciled in the
Dominican Republic, the IDV court determined — based on the statements
that he had made to probation authorities when seeking release on his own
recognizance in the criminal matter — that the father had claimed in that
proceeding to be a businessman who had resided in New York City for the
previous two years. Demonstrating how an integrated court prevents parties
from presenting different faces to different courts, the IDV court declined to
credit the father’s subsequent contradiction of those assertions as part of his
bid to have jurisdiction remain in the Dominican Republic. Thus, the IDV
court could assume modification jurisdiction because “a court of this state or a
court of the other state determines that the child, [and] the child’s parents . . .
do not presently reside in the other state.” 17
The Bronx Court found additional, independently sufficient reasons why it
was appropriate to assume modification jurisdiction. The UCCJEA permits
assumption of jurisdiction if “the court of the other state determines it no longer
has exclusive, continuing jurisdiction.” 18 The Dominican judge had indicated
that, according to an original custody agreement, the parties intended that
custody revert to the mother once she settled in the United States, as she now
had, and the court gave its express consent to transfer of the matter to New
York. Notably, the determination that a child no longer has a “significant
connection” with the home state can only be made by the original court; another
court cannot determine that issue for it. 19 Thus it was only for the Dominican
court, and not New York, to come to that important conclusion. Either the
original or new court, however, may determine that the child and the child’s
parents do not presently reside in the original home state. 20