Kaplan-White v White (A.D. 2 Dept 1995)632 N.Y.S.2d 581
Leave to appeal denied 87 N.Y.2d 805 [663 N.E.2d 920]
2 International Abduction [USA 1995]
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In the Matter of:
Appellant: Eileen Kaplan-White
v.
Respondent: Anthony White
02 Oct 1995
Before O’BRIEN, J.P., and COPERTINO, SANTUCCI and JOY, JJ.
MEMORANDUM BY THE COURT.
001 In a custody proceeding pursuant to Family Court Act
article 6, the mother appeals from an order of the Family
Court, Kings County (McLeod, J.), dated October 26, 1993,
which directed the infant child of the parties’ marriage to
be remanded to Commissioner of Social Services of the City
of New York for the purpose of transferring her to the State
of Nevada.
002 ORDERED that the order is affirmed, without costs or
disbursements.
003 Contrary to the mother’s contention, the New York
Family Court properly declined to exercise jurisdiction over
the issue of custody of the child in this case (see,
Domestic Relations Law H 75-b [9 ULA 2]; 75-d[l][d][i] [9
ULA 3(a)(4)]; 75-g [9 ULA 6]). The record indicates that
the father commenced an action for dissolution of the
parties’ marriage and for custody of the child in the courts
of England, the family’s permanent home. Moreover, the
record indicates that, while on a visit to relatives in New
York, the mother abducted the child and moved to Nevada to
live with her sister. The father followed, there was a
reconciliation, and the family lived in Nevada for
approximately five months. When the mother left Nevada with
the child and without the father’s consent, the father moved
in the Nevada courts for the return of the child to Nevada
and, subsequently, to England pursuant to the Hague
Convention (see, Hague Convention on the Civil Aspects of
International Child Abduction, ch. 1, arts. 1, 3; [reprinted
in USCS International Agreements Indices] ch. 11, art. 12).
Pursuant to article 12 of the Hague Convention, Nevada is
required to return the child to England for a determination
of the custody issue if the child resided in the United
States for less than a year when the English petition was
filed.
004 The record clearly indicates that, when the New York
Family Court discussed the issue of jurisdiction with the
Nevada District Court, the Nevada District Court had already
exercised jurisdiction over the matter by issuing ex parte
orders and it did not intend to relinquish jurisdiction
(see, Domestic Relations Law 75-d[1][d] [9 ULA 3(a)(4)]).
Contrary to the mother’s contention, she has not been denied
her right to a hearing on the issue of custody. Rather, she
must avail herself of the proper forum for a determination
of that issue.
Notes by Wm. M. Hilton
005 It would appear that the results were achived with
little litigation time. One does wonder if acquiescence
could have been argued in the NV courts. The case does make
an interesting point that there is no denial of due process
as to the hearings on custody, that is to be done in the UK.
006 It would also appear that there is a valid action in
the UK for custody and that this should normally be
reocgnized under the UCCJA.