Matter of MG v WZ, --- N.Y.S.2d ----, 2014 WL 5026267 (N.Y.Fam.Ct.), Editors Comment Regarding Jurisdiction of Family Court

In Matter of MG v WZ, --- N.Y.S.2d ----, 2014 WL 5026267 (N.Y.Fam.Ct.), 2014 N.Y. Slip Op. 24296, the Family Court granted the motion of Respondent for an order reopening an Order of Custody on Default and allowing him to proceed on his petition for return of the Child to the Dominican Republic pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the International Child Abduction Remedies Act, 42 United States Code § 11601, et seq. The Court denied the petition for return.

In footnote 1 the court indicated that it had advised counsel that this “was not a custody hearing.” Hague Convention cases are not custody cases. The court is limited to adjudicating “only rights under the Convention” and may not decide “the merits of any underlying child custody claims. See Ozaltin v. Ozaltin, 708 F.3d 355, 360 (2d Cir. 2013). A petition for the return of a child commencing a civil action for the return of a child must be filed "in any court which has jurisdiction of such action." 22 U.S.C. § 9003 (b), formerly cited as 42 USC § 11603 (b) 

The New York State Supreme Court has jurisdiction to hear these proceedings. N.Y. Const, art VI, § 7[a].  On the other hand, the Family Court is a court of limited jurisdiction, whose jurisdiction is proscribed by Article VI, § 13 of the New York State Constitution. It has not been conferred with jurisdiction under  Article VI, § 13 of the New York state constitution to determine such cases. 

A court hearing a Hague Convention proceeding must have jurisdiction of the action and must be authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed. 22 U.S.C. § 9003 (b), formerly cited as 42 USC § 11603 (b). Family Court is not authorized to exercise such jurisdiction. While 22 U.S.C. § 9003, formerly cited as 42 USC § 11603, grants original  jurisdiction of these proceedings to State and federal district courts, it does not grant jurisdiction to state courts of limited jurisdiction, such as the family court and surrogates court, nor does it purport to do so. 

Moreover, Domestic Relations Law §77-a, the Uniform Child Custody Jurisdiction and Enforcement Act, which provides that a “court of this state may enforce an order for the return of the child made under the Hague Convention on the Civil Aspects of International Child Abduction as if it were a child custody determination”, does not authorize the commencement of a civil action for the return of a child.

 It appears that the Family Court lacks subject matter jurisdiction to hear Hague Convention cases. This has been confirmed by the U.S. Court of Appeals for the Second Circuit, which has held that " [t]he phrase “in any court which has jurisdiction of such action,” 42 U.S.C. § 11603(b), underscores that while § 11603(a) confers jurisdiction in a particular federal forum (i.e., in United States district courts), it does not confer jurisdiction in particular state courts (e.g., a family-law court; a juvenile court; or a court of general jurisdiction); the appropriate state forum for an action under the Hague Convention is an issue of state law. The court in which the petition is filed must also be “authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.”  Ozaltin v. Ozaltin, 708 F.3d 355, 360 (2d Cir. 2013). See footnote 25