Decatur v. Ahearn

whether the notice which was issued from the Massachusetts Probate Court was sufficient in the Massachusetts adoption proceeding. On balancing the interests and conveniences of the respective parties and of the courts, we conclude that the action could be better adjudicated in a Massachusetts forum. This is not a case where plaintiffs are precluded from effective redress of their grievances in a more appropriate forum (see Varkonyi v S. A. Empresa De Viacao Airea Rio Grandense [Varig], 22 NY2d 333 , 338). We find no “special and unusual circumstances” warranting continued acceptance of this action in New York (Taylor v Interstate Motor Frgt. System, 309 NY 633 , 636). Nor does Burch’s residence in New York preclude us from staying or dismissing the action (CPLR 327; Silver v Great Amer. Ins. Co., 29 NY2d 356 ). In sum, we conclude that New York is an inconvenient forum and that litigation in Massachusetts would best serve the ends of justice and the convenience of the parties. The complaint should, therefore, be dismissed, without prejudice. In Action No. 2, we hold that the Rensselaer County Family Court erred, requiring reversal of the order and dismissal of the petition. That court relied upon section 75-d (subd 1, par [b]) of article 5-A of the Domestic Relations Law (Uniform Child Custody Jurisdiction Act) by holding “it is in the best interest of the child that the court assume jurisdiction because the child and Burch have a significant connection with New York State”, and “there is within the jurisdiction of the court substantial evidence concerning the child’s present or future care, protection, training and personal relationships”. It was, however, mandatory for the Family Court to comply with the express statutory command of section 75-g of the Domestic Relations Law, given the pendency of the Massachusetts proceedings which were fully set forth in the Burch petition. At the very inception of the Rensselaer County proceedings, the question with which the court should have been concerned was not whether New York had jurisdiction to determine the dispute, nor whether New York was the more appropriate forum. “Rather, at that stage of the proceeding, the focus of inquiry should have been whether [Massachusetts] was ‘exercising jurisdiction substantially in conformity’ with article 5-A” (Vanneck v Vanneck, 49 NY2d 602 , 610). The record shows that the Rensselaer County Family Court failed to communicate with the Massachusetts Probate Court, at which moment subdivision 3 of section 75-g of the Domestic Relations Law came into play and required that the Burch petition be stayed and that the court communicate with Massachusetts for, at a very minimum, the exchange of information. The unilateral decision to assume jurisdiction is contrary to the avowed purposes of the act by which New York is bound even though Massachusetts has not adopted the act. “[A] New York court must heed the statutory command to defer adjudicating the dispute and communicate with the foreign court” (Vanneck v Vanneck, supra, pp 610-611 ). Further analysis shows that the Family Court found the jurisdictional prerequisite for a custody determination by a satisfaction of section 75-d (subd 1, par [b]) of the law. That section provides, in part, that jurisdiction may be found only when it is in the best interests of the child because (i) the child and at least one contestant have a significant connection with this State, and (ii) there is within the jurisdiction substantial evidence concerning the child’s care, protection and future relationships. The Court of Appeals, in interpreting this same paragraph in Vanneck held that “[m]aximum rather than minimum contacts with the State are required” (Vanneck v Vanneck, supra, p 610 ), and that although the subdivision permits a flexible approach to various fact patterns, the imprecision must not destroy the legislative design to limit jurisdiction, not proliferate it (id.). The record reflects that except for the grandmother Burch and other blood relatives in New York, every contact the child had was with Massachusetts. It was the State of her birth and her only residence until these proceed

ings were commenced in April, 1981. In 1978, custody had been granted to the Department of Public Welfare in Massachusetts where she lived with foster parents. She was in school and day care centers, and received therapy and medical care there. Clearly, from the evidence, that was her “ ‘Home state’ ” (see Domestic Relations Law, § 75-c, subd 5). We reject the grandmother’s contention that an emergency existed in which the welfare of the child vitally required that the courts of this State determine custody (see Martin v Martin, 45 NY2d 739 ; De Passe v De Passe, 70 AD2d 473 ). While Burch offered a psychiatrist’s report to substantiate her contention, the record shows that the child not only received mental therapy in Massachusetts, but that multiple investigatory reports from that State show she was well adjusted and happy in her foster home and did well in school. Moreover, multiple court proceedings, including at least three petitions by Burch herself, were brought in Massachusetts. If indeed “[mjaximum rather than minimum contacts with [a] State” are significant criteria to guide courts in determining a jurisdictional issue {Van-neck v Vanneck, supra; Matter of Sullivan v Sullivan, 87 AD2d 42 ; Steinman v Steinman, 80 AD2d 892 , app dsmd 54 NY2d 641 ), the Family Court erred in concluding that it had jurisdiction. While we cannot help but sympathize with Mrs. Burch, who obviously exhibits love and concern for Katherine, we are constrained to follow the law as we find it to be. Chief Judge Cooke, in a footnote in Vanneck v Vanneck {supra, p 611 ), wrote: “We are not unmindful of the possibility that a court in another State might exercise jurisdiction and decide the issues during a stay effected by a New York court for purposes of communicating with the other court (see e.g., Irene R. v Inez H., 96 Mise 2d 947). But we cannot adopt a defensive posture and, acting on an assumption that a. sister court will ignore its obligation under the UCCJA, effectively nullify the laudable goals of that legislation.” The order of the Family Court must be reversed and the petition dismissed. Order, in Action No. 1, modified, on the law and the facts, to reflect dismissal of the complaint, without prejudice, on the ground of forum non conveniens, and, as so modified, affirmed, without costs. Order, in Action No. 2, reversed, on the law, without costs, and petition dismissed. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.