respondent in the long-ago terminated state court matrimonial proceeding, neither the Federal Rules of Civil Procedure nor New York's Civil Practice Law and Rules authorize service of process in this fashion. Nor did any court order precede the petition authorizing such service. Accordingly, the current application, like the application previously denied by Judge Korman, is an ex parte one, since no effective service has been made.
The sole issue posed by the petition is thus the propriety of granting the relief sought, "a warrant in lieu of a writ of habeas corpus", on a ex parte basis, in light of the showing made in petitioner's papers. ICARA's provision for provisional remedies, 42 U.S.C. § 11604(a), authorizes the court to take measures "under Federal or State law, as appropriate, to protect the well-being of the child involved or to prevent the child's further removal or concealment before the final disposition of the petition." 42 U.S.C. § 11604(a). However, no court may "order a child removed from a person having physical control of the child unless the applicable requirements of State law are satisfied." 42 U.S.C. § 11604(b).
At the outset, there is authority in New York that, at least under the circumstances of the given case, the due process requirements of the PKPA and the UCCJA are not met by an ex parte order for temporary relief. Sherry Ann F. v. Bennett S., 131 Misc. 2d 854, 859, 502 N.Y.S.2d 383 (Schoharie Co. 1986) (holding that "the legal and jurisdictional, as well as the practical effect of the respondent father's unilateral removal of the child from California . . . [was] dissipated by the inaction, if not acquiescence, on the part of the mother, and the ex parte order [obtained in California] sought to be enforced [in New York] is lacking in fundamental due process of law, and was not obtained in conformity with the provisions of the" PKPA and the UCCJA). See also Giddings v. Giddings, 228 N.W. 2d 915 (N.D. 1975) (stating that in light of the notice provisions of the UCCJA, it was error for the court below to grant ex parte relief). There is also authority in New York, however, that although a "custody determination, which may drastically affect a child's welfare, ordinarily should not be based on an ex parte application", "a temporary custody determination [may be made] in an ex parte order to show cause" upon "a showing of extraordinary circumstances." Alberts v. Alberts, 168 A.D.2d 1004, 564 N.Y.S.2d 945 (4th Dept. 1990). Assuming argendo that an ex parte application is not prohibited and the latter standard is applicable, the required showing has not been made here.
The petition makes only the most conclusory allegation of unlawful detention and unexplained "belief that the children will be carried out of the jurisdiction of the Court or will suffer irreparable injury unless a warrant is issued." Nothing in the petition or its attachments support the assumption that respondent, who has concededly lived in East Hampton with her children for a year and a half in a home the parties purchased nine years ago, will act to escape the jurisdiction of the court pending a proceeding under ICARA.
Notably, petitioner waited some eight months after respondent most recently took up residence in New York with her children, in late 1990, to file his first petition under ICARA; and after that petition was dismissed without prejudice, he waited an additional nine months before filing the instant petition, which is virtually a carbon copy of the earlier one. The prolonged lapse of time, unaccompanied by any explanation, itself belies the contention that provisional relief is warranted. Indeed, if Towney's letter, which has not been contested by petitioner, is correct, even the German court, in which both parties are represented, reached the conclusion that pending the completion of that proceeding, the children should remain in New York in the custody of their mother, the respondent here.
Further, while Justice Dunn's decision concludes that respondent's conduct cannot be characterized as blameless, that opinion cites no evidence warranting immediate removal of the children from her custody. There is no evidence that respondent physically or emotionally abused the children, or acted in an way justifying the relief sought.
According, the request for a warrant should be denied.
For the foregoing reasons, I recommend that petitioner's application for provisional relief by issuance of a "warrant" be denied.
Any objections to this Report and Recommendation must be filed with the Clerk of the Court within 10 days of receipt of this report. Failure to file objections within the specified time waives the right to appeal the district court's order. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. Pro. 6(a), 6(e); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).
Dated: Brooklyn, New York
July 2, 1992
Allyne R. Ross
United States Magistrate Judge