Calendar Date: October 11, 2017
E. Van Tull, Binghamton, for appellant.
& Greenberg LLP, New York City (Philip C. Segal of
counsel), for respondent.
J. Pelella, Owego, attorney for the child.
Before: McCarthy, J.P., Lynch, Rose, Clark and Pritzker, JJ.
MEMORANDUM AND ORDER
from an order of the Family Court of Broome County
(Connerton, J.), entered February 11, 2016, which, among
other things, partially granted petitioner's application,
in a proceeding pursuant to Family Ct Act article 6, for
custody of the parties' child.
(hereinafter the father) and respondent (hereinafter the
mother) are the parents of a child (born in 2014). The
parties, who are both Israeli citizens, were introduced in
Israel because both wanted to have a child. The child
thereafter was conceived pursuant to an agreement made while
the mother was living in Israel and the father was living in
the United States. Their agreement (hereinafter the parenting
agreement) was reduced to writing and executed by both
parties after the mother became pregnant and had moved to the
United States. At the time this proceeding was commenced, the
father held a green card and was eligible to apply for United
States citizenship. The mother was residing in the United
States pursuant to a student visa that was about to expire.
the preamble to the parenting agreement states that the
parties planned a civil marriage, the parties never married.
The parenting agreement also provided that the mother would
relocate to the United States prior to the child's birth
and, if the mother was not working, the father would
"take[ ] care" of all of her expenses. As to
custody, the parties provided for different scenarios
depending on whether they were residing in Israel or the
United States. As to the latter, the parties agreed that they
would share joint custody if they were residing together but,
if they were living separately, the child would live with the
mother, and the father would have parenting time during the
week, with overnight parenting time beginning after the child
turned one. The parties also included comprehensive
provisions for custody and parenting time in the event that
the mother was living in Israel and the father was living in
the United States. In the event there was a dispute, the
parties agreed that "Family Court in [Israel would] have
sole jurisdiction to judge any matter involving or resulting
from the agreement."
April 2015, the father petitioned for custody of the child.
The mother answered and moved to dismiss the father's
petition based on the provision of the parenting agreement
that placed jurisdiction of custodial matters with Family
Court in Israel. Family Court denied the mother's motion
to dismiss, finding, among other things, that it had subject
matter jurisdiction and that the forum selection clause was
unenforceable on public policy grounds. Following a
fact-finding hearing, Family Court granted the father primary
physical and sole legal custody of the child with parenting
time to the mother. The order also prohibited the removal of
the child from the United States without the written consent
of both parties. The mother now appeals.
threshold matter, the mother argues that the forum selection
clause in the parenting agreement divests Family Court of
jurisdiction to decide this custody matter. We disagree. The
Uniform Child Custody Jurisdiction and Enforcement Act
(see Domestic Relations Law art 5-A) provides that a
New York court has jurisdiction to make an initial custody
determination only if, as relevant here, "[New York] is
the home state of the child on the date of the commencement
of the proceeding, or was the home state of the child within
six months before the commencement of the proceeding"
(Domestic Relations Law § 76  [a]; Matter of
Chichester v Kasabian, 82 A.D.3d 1511, 1511 ). A
child's home state is "the state in which a child
lived with a parent... for at least six consecutive months
immediately before the commencement of a child custody
proceeding" (Domestic Relations Law § 75-a ).
Because the parties' child has never lived anywhere but
in New York, making New York the child's home state,
Family Court properly exercised jurisdiction (see Matter
of Lewis v Martin, 134 A.D.3d 1179, 1181 ).
and contrary to the father's argument, we find that the
mother's claim that New York was an inconvenient forum
was preserved for our review. To this point, despite its
finding that New York was the child's home state, Family
Court had the discretion to decline jurisdiction on the
ground that New York was an inconvenient forum after
consideration of eight statutory factors (see Matter of
Frank MM. v Lorain NN., 103 A.D.3d 951, 952 ;
see Domestic Relations Law § 76-f ). Here,
the only factor raised by the mother was the parenting
agreement. The existence of an "agreement of the parties
as to which state should assume jurisdiction" is one
factor that may be considered when making a determination
with regard to whether New York is an inconvenient forum
(Domestic Relations Law § 76-f  [e]), but
"parties cannot, by agreement, confer jurisdiction on
[another] state" (DeJac v DeJac, 17 A.D.3d
1066, 1068 , lv denied 20 A.D.3d 946');">20 A.D.3d 946 ).
Although Family Court did not specifically address all of the
remaining factors, upon our permissible review of the
extensive record (see Matter of Frank MM. v Lorain
NN., 103 A.D.3d at 953), we discern no basis for finding
that New York is an inconvenient forum.
to the merits, an initial custody determination must be based
on the best interests of the child, a determination made
after "reviewing such factors as maintaining stability
for the child, the child's wishes, the home environment
with each parent, each parent's past performance,
relative fitness, ability to guide and provide for the
child's overall well-being, and the willingness of each
parent to foster a relationship with the other parent"
(Matter of Lilly NN. v Jerry OO., 134 A.D.3d 1312,
1313  [internal quotation marks, brackets and citations
omitted]). Relevant here, although a custodial agreement
between the parties that has not been reduced to an order is
a factor to consider (see Matter of Joseph G. v Winifred
G., 104 A.D.3d 1067, 1068 , lv denied 21
N.Y.3d 858 ), it is not dispositive because "[a]
promise affecting the right of custody of a minor child is
unenforceable on grounds of public policy unless the
disposition as to custody is consistent with the best
interest of the child" (Restatement 2d of Contracts
§ 191). Further, where, as here, an initial custody
determination involves one parent who wishes to relocate with
the child, the parent's "decision to reside in a
distant locale is a very important factor among the
constellation of factors to be considered in arriving at a
best interests determination, particularly where there is
evidence that it would detrimentally affect the other
parent's relationship with the child" (Matter of
Bush v Lopez, 125 A.D.3d 1150, 1150 ). Because
Family Court has a "superior ability to observe and
assess the witnesses' testimony and demeanor firsthand,
its factual findings and credibility determinations - if
supported by sound and substantial evidence - will not be
disturbed" (Matter of DiMele v Hosie, 118
A.D.3d 1176, 1177 ; see Matter of William BB. v
Melissa CC., 136 A.D.3d 1164, 1166 ).
fact-finding hearing, the mother testified that she was
working as a nanny in Israel when she and the father were
introduced for the purpose of conceiving and raising a child
together. In December 2013, when she was approximately four
months pregnant, she moved to the United States with the
belief that she would live in Reno, Nevada where the father
worked as a cardiologist, that they would marry and that she
would become a legal resident of the United States.
Unfortunately, the father lost his job in Reno and obtained a
new job in the Town of Potsdam, St. Lawrence County.
Accordingly, the mother moved from Israel to Potsdam in
December 2013 and remained there with the father through the
winter without a driver's license or access to public
transportation. After two months in Potsdam, the father
obtained a job in the City of Binghamton, Broome County,
where the two moved and the child was born. At some point
after the mother relocated to the United States, the father
advised that it was no longer possible for him to marry her,
so she obtained a student visa and began to attend classes at
a community college to earn a degree as a lab technician.
While the mother was at school, the child was with a nanny
for a period of time before obtaining a ...