27. USA – NY – CROFTON – 1992 (Return ordered) CROFTON V CROFTON. Mother removes the children from the UNITED KINGDOM to USA. Father seeks relief pursuant to the Hague Convention. Children are ordered returned to the UK by the New York court.
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FAMILY COURT OF NEW YORK
COUNTY OF ORANGE
Family File No. 15461
O-254-92
V-2211/2212-92
X-2905/2906-92
Martha Crofton vs John Crofton
DECISION AND ORDER
02 Jul 1992
HON. ANDREW P. BIVONA
Robert D. Arenstein, Esq.
295 Madison Ave.
New York, NY 10017
Attorney for John Crofton
Erik Indzonka, Esq.
LEGAL AID SOCIETY OF ORANGE COUNTY, INC.
P.O.Box 328
Goshen, NY 10924
Attorney for Martha Crofton
The above captioned captioned proceedings were brought in this
Court by parties who are husband and wife and are the parents of
two children: Emma, age 8 and Chloe, age 5. Martha Crofton
filed the first two petitions on June 15, 1992.
The first, a family offense petition alleging the commission of
such offenses by John Crofton and requesting an Order of
Protection in favor of the petitioning mother and the two
children. A temporary order was granted upon. the ex parte
application and testimony of the Petitioner.
The second petition is a custody petition in which the
petitioning mother seeks an order of this Court granting @er
legal and physical custody of the children.
John Crofton filed a petition on June 18, 1992 seeking relief
pursuant to the Hague Convention, WMHFN-1 alleging a wrongful
taking WMHFN-2 of the children by Martha Crofton from their
residence in the United Kingdom. This Court issued a notice of
such petition, WMHFN-3 and upon the return date deemed such
service as was accomplished sufficient to give Martha Crofton
notice of such proceeding. WMHFN-4 There was no appearance by
Martha Crofton and testimony was taken, after which this Court
issued a warrant for the return of the children. Said warrant was
executed on July 1, 1992.
The parties and the children appeared in Court on July 1, 1992,
at which time each party, through counsel, acknowledged receipt
of the pleadings filed in this Court by the other. The matter was
thereafter adjourned to July 2, 1992 for the parties appearance
with regard to the applications of each. Temporary physical
custody of the children was placed in John Crofton, pending such
return to this Court.
Now, upon this Court’s consideration of the pleadings, prior
proceedings and the appl.icable law, it is determined as follows:
Jurisdiction
This Court has obtained personal jurisdiction over each of the
parties, based upon their respective applications to this Court,
WMHFN-5 as well as their having been served with the other
party’s pleadings within this jurisdiction. This Court has
subject matter jurisdiction pursuant to the United States
Constitution, the Hague Convention, WMHFN-6 the New York State
Constitution and the Statutes of the State of New York. WMHFN-7
Findings of Fact
The parties are married to each other and of that marriage have
two children, Emma and Chloe. The parties resided in the United
Kingdom at all times since the births of the children, John
Crofton being a British subject and Martha Crofton a citizen of
the United States. The children may in fact have dual
citizenship. WMHFN-8
On or about June 8, 1992, Martha Crofton departed England, taking
with her the parties’ two children, and arrived in the United
States on the same date. Thereafter application was made to this
Court. WMHFN-9
On or about June 10, 1992, John Crofton applied to the High Court
of Justice, Family Division, in and for the Stocton on Tees
District Registry for an ex parte order. Said order was granted
and among other relief, made the children wards of the Court.
That matter is now pending, and by reason of the temporary order
and the pleadings submitted to the High Court of Justice having
been included in those papers filed and served in the matter
before this Court, the High Court of Justice has obtained
jurisdiction over the parties.
Conclusions of Law
Both this Court and the High Court of Justice of the United
Kingdom have properly asserted jurisdiction. WMHFN-10
The Hague Convention is applicable to this matter and is
analagous to the Uniform Child Custody Act, WMHFN-11 which is a
compact between the several states of the United States of
America. The purpose of the international treaty and the
interstate compact is to allow that court with the predominent
contact with the children to adjudicate their best interests. As
such, residency requirements are considered to be the leading
criteria. WMHFN-12 New York State’s adoption of the Uniform
Child Custody Act is a statement of public policy that the said
precepts should be followed.
This Court, having considered the foregoing, finds that the
jurisdiction having the predominent contacts with the children,
and the Court best able to determine their best interest, is the
court in that jurisdiction in which the children have resided for
all of their lives.
Accordingly, it is
ORDERED, that all of these proceedings now pending in this court
be and the same are hereby transferred to the High Court of
Justice, Family Division, District Registry for Stocton on Tees
for adjudication, together with that cause pending under Matter
Number 92 WG 354, and it is further WMHFN-13
ORDERED, that the Clerk of this Court transmit copies of each
party’s original petition together with a certified copy of this
Order to said Court, and it is further WMHFN-14
ORDERED, that the children shall continue to be Wards of the High
Court of Justice pursuant to the Order of that Court dated June
10, 1992, provided however that this Court shall retain
jurisdiction over the parties until such time as each of the
parties has appeared in the High Court of Justice and until such
time as each of the parties has fully complied with this Order,
and it is further WMHFN-15
ORDERED, that John Hugh Crofton and Martha Crofton shall cause
the return to the United Kingdom of the children Emma Crofton and
Chloe Crofton, and physical, not legal, custody is, upon consent
of the parties, placed in them for that purpose, and it is
further
ORDERED, that the parties shall appear in and submit to the
jurisdiction of the High Court of Justice, District Registry for
Stocton on Tees, United Kingdom, not later than ten (10) days
from the date of this order, or at such other time as that Court
shall direct.
Dated: Goshen, New York
United States of America
July 2, 1992
ENTER,
/s/ Andrew P. Bivona
________________________
HONORABLE P> VIVONA
Family Court Judge
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NOTICE: All footnotes are from Wm. M. Hilton
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1. The Convention on the Civil Aspects of International Child
Abduction, done at the Hague on 25 Oct 1980 [The Convention].
2. The Convention, Art 3
3. The Convention, Art 16. When such notice is issued, the
courts are restrained from deciding on the merits of the
underlying custody/access action.
4. Notice under The Convention is determined by International
Child Abduction Remedies Act, 42 USC 11601 et seq (ICARA), at
11603(c).
5. Since ICARA states that notice is governed by interstate
custody law, this would be proper notice. See 9 Uniform Laws
Annotated (ULA) 5(d).
6. 42 U.S.C. 11603(a)
7. New York’s version of the Uniform Child Custody Jurisdiction
Act (UCCJA), DRL 75-a through 75-z.
8. This would make the United Kingdom (UK) the “Habitual
Residence” of the children within the meaning of Art 3 of The
Convention.
9. Since, under UK law, the parents have joint custody of a
child absent an order of a court, the taking of the children
would be in derrogation of the rights of custody of the left
behind parent and therefore a “Wrongful Removal” within the
meaning of Art. 3 of The Convention.
10. This may not be true, except in a very limited sense. It
would appear (although this is not clear) that the action in
the UK was commenced prior to the action in New York. That
being the case 9 ULA 5 prohibts New York from exercising any
Child Custody Subject Matter Jurisdiction (CCSMJ) it may
have. From the facts given it is very doubtful, nearly to
the point of being a conclusion, that New York did not have
CCSMJ. The UK was the “Home State” of the children and only
the UK had “Significant Contacts” with the children. New
York could, but only for a limited period of time, exercise
“Emergency” CCSMJ while the matter was being sorted out.
11. While there is some similarity, the UCCJA and The
Convention differ materially. Under the UCCJA there needs to
be some order for custody, properly made. Under The
Convention there needs only be a “Wrongful Removal” and,
absent a finding of one of the exceptions, the child(ren) are
returned to their “Habitual Residence”. See the file
ANTON.ART in the Hilton House Data Base.
12. This is a correct assessment of The Convention. See No. 34
in the Perez-Vera Report, PEREZ.RPT in the Hilton House Data
Base.
13. This appears to be an application of 9 ULA 22 and possibly 9
ULA 7(h).
14. See FN 13
15. This order ensures that its orders will be carried out and
that, pending a hearing in the UK, custody will be maintained
in one of the parties or the UK Court. See file RTNORD.CA
and RTNORD.FRG in the Hilton House Data Base.