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In re Eldad LL

Supreme Court of New York, Third Department

November 22, 2017

In the Matter of ELDAD LL., Respondent,
DANNAI MM., Appellant. And Another Related Proceeding.

          Calendar Date: October 11, 2017

          Alena E. Van Tull, Binghamton, for appellant.

          Segal & Greenberg LLP, New York City (Philip C. Segal of counsel), for respondent.

          Palmer J. Pelella, Owego, attorney for the child.

          Before: McCarthy, J.P., Lynch, Rose, Clark and Pritzker, JJ.


          Lynch, J.

         Appeal 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.

         Petitioner (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.

         Although 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."

         In 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.

         As a 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 [1] [a]; Matter of Chichester v Kasabian, 82 A.D.3d 1511, 1511 [2011]). 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 [7]). 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 [2015]).

         Next, 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 [2013]; see Domestic Relations Law § 76-f [2]). 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 [2] [e]), but "parties cannot, by agreement, confer jurisdiction on [another] state" (DeJac v DeJac, 17 A.D.3d 1066, 1068 [2005], lv denied 20 A.D.3d 946');">20 A.D.3d 946 [2005]). 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.

         Turning 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 [2015] [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 [2013], lv denied 21 N.Y.3d 858 [2013]), 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 [2015]). 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 [2014]; see Matter of William BB. v Melissa CC., 136 A.D.3d 1164, 1166 [2016]).

         At the 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 ...

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