PROCEDURAL HISTORY This motion asks the Court to decide temporary custody of a child that resides in Nigeria. Under the applicable law and facts, the Court finds that it can and must do so. Ms. O. filed the underlying petition for custody of the child F. (D.O.B. 4/22/2013) on August 30, 2021. Mr. O. also filed a petition for custody on behalf of all the children, including F. on October 13, 2021. Mr. O. subsequently withdrew his petition for custody of F.. On March 28, 2022, after considerable delay caused in part by judicial transfers, this court heard Ms. O.’s initial application for the return of and access to the subject child. On May 11, 2022, the Court directed Mr. O. to turn over all necessary immigration information for the Subject Child. On or about May 27, 2022, the Attorney for Ms. O. filed an affirmation in support of her request for the Court to exercise jurisdiction over the Child F.. On or about September 17, 2022, the attorney for Mr. O. filed an Order to Show Cause seeking, inter alia, an order denying subject matter jurisdiction over the child F.. A hearing was conducted on September 23, 2022 solely on the questions of fact necessary to determine whether the Court would exercise jurisdiction. For the reasons reiterated below, on that date the Court found that New York could exercise vacuum jurisdiction over the child F. pursuant to section 76(1)(d) of the domestic relations law. 9/23/22 Decision on Jurisdiction: The Court held a hearing on September 23, 2022 for the limited purpose of resolving whether Ms. O.’s consented to the child F. continued residence in Nigeria with relatives. It was uncontested that the child F. has resided in Nigeria for his entire life. During the hearing, Ms. O. testified that Mr. O. left Nigeria in 2016 with the intention that she and the children would follow as soon as possible. By September of 2017, Ms. O. testified that she believed they had visas for herself and three children. However, when attending an appointment at the consulate, she discovered that there was an issue with the information provided by Mr. O. for Folofulawa’s visa. She testified that when she asked Mr. Odubnajo for help to make additional appointments, Mr. O. told her he had no access to internet. Because her visa and the visas for the other two children were time limited, she testified that both parties agreed that F. would temporarily reside with his grandfather for two to three months until his parents were able to obtain the necessary paperwork to bring him to the United States. After her arrival in the United States, Ms. O. testified that her attempts to get Mr. O. to bring F. to the U.S. were unavailing. She also testified that she herself is unable to travel since her asylum application is pending. Ms. O. testified that she stopped living with Mr. O. due to domestic violence on June 24, 2021 when she left the marital residence with the three other subject children. She filed a proceeding to have F. brought to the United States soon thereafter. Ms. O. said that she continues to try and have F. brought to the United States, even requesting help from her sister in obtaining F.’s passport. She explained that she does not know the current address or phone number where F. is residing despite Mr. O. having been directed to provide that information. She indicated that she only spoke with a paternal aunt once in 2022 with the number that Mr. O. provided but was not allowed to speak with the child. Mr. O. did not testify. Based on testimony presented at the hearing, the Court found that Ms. O. never consented to the child’s permanent residence in Nigeria, that the relatives caring for the child in Nigeria were not persons acting as a parent and that it was the intention of both parties to bring the child to the United States. Therefore, the Court held that: “Here, no other State can properly assume jurisdiction. Nor can jurisdiction properly lie in Nigeria when both parents, who have a superior right to custody, reside in New York. Additionally, the Children who reside here in NY have rights to visit with their sibling that cannot be effectuated without the court assuming jurisdiction. Therefore, it is appropriate for New York to assume “vacuum jurisdiction” in this case. Nusrat C. v. Muhammed R., 67 AD3d 419 (1st Dept 2009) (finding that subject matter jurisdiction existed under both DRL §70 (a) and DRL 76(1)(d) even though the child lived abroad, because both parents lived in the state and were personally before the court); see also People ex rel. Satti v. Satti, 55 AD2d 149 (1st Dept 1976), affd. 43 N.Y.S. 2d 671 (1977). Pursuant to DRL 76(1)(d), this Court has jurisdiction over the child F. O..” Motion for Temporary Custody On or about October 18, 2022 Ms. O. filed the instant Order to Show Cause requesting (1) an order of sole physical and legal custody during the pendency of the proceedings; (2) directing Mr. O., to execute any necessary documentation required to allow the child F. to legally travel from Nigeria; (3) permitting Ms. O. to designate an agent to transport F. to and from any appointments with Nigerian and/or United States government entities for the purpose of applying for and obtaining a Nigerian passport for F. as well as a visa to allow such travel; (4) permitting Ms. O. to designate a responsible adult to chaperone and accompany F.; directing Mr. O. to turn over to Ms. O. any and all citizenship, identification, immigration and travel documents for the child F.; directing Respondent to pay the reasonable and necessary travel expenses for F. and his designated adult chaperone from Lagos, Nigeria to New York. During a court appearance scheduled on October 26, 2022 for the Order to Show Cause, all counsel and parties appeared. For the first time, Mr. O., through his attorney, stated that there was a Nigerian action pending and it was filed by whoever the child was with but did not have any specific details. The Court set a briefing schedule for response and reply papers. Mr. O. submitted his opposition papers on November 11, 2022. Ms. O. submitted her reply on November 16, 2022. LEGAL ANALYSIS As stated above, this Court decided the issue of Jurisdiction on September 23, 2022. However, in response to Ms. O.’s application for temporary custody, Mr. O. continues to argue that this Court lacks jurisdiction over the subject child and raises a new issue concerning pending litigation in Nigeria. For the reasons below, in so far as Mr. O. raises new issues concerning jurisdiction, this Court continues to find that it has jurisdiction in this case to make orders concerning the child, including temporary custody.1 The Court finds that the child is not with a “person acting as a parent” within the meaning of the UCCJEA. In making an initial child custody determination, the UCCJEA prioritizes a child’s home state.2 Id. at §76(1)(a). Home state is defined as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” Id. at 75-a(7). A person acting as a parent is an individual who has physical custody of child for six consecutive months within one year immediately preceding the commencement of a custody proceeding; or an individual who has been awarded legal custody or claims a right to legal custody under the law of this state. Id. at 75-a(13)(a)-(b).3 As previously determined, the rotating family members, including the grandfather and at least two aunts, currently providing support to F. in Nigeria since his parents came to the US, cannot constitute persons acting as a parent under the definition of the statute because they are caring for the child without Ms. O.’s consent. In John M. v. Teresa M., the Court found that despite the children living with the maternal grandparents, the maternal grandparents were not “persons ‘acting as a parent’ because the mother could not designate them as the children’s temporary legal custodian over the father’s objections, given the fact that the parents had joint legal custody of the children…” 924 N.Y.S.2d 309 (Kings County 2011); see also Matter of Breselor v. Arciniega, 123 AD3d 1413 (3d Dept 2014) (finding that the paternal grandfather was not a person acting as a parent because the grandmother could not claim a right to, and had not been awarded, legal custody of the child). In contrast, the Court in M.M. v. M.A. specifically noted that the petitioner’s argument that a grandparent with whom the child resides on the consent of the respondent, was not “a person acting like a parent” was misplaced because the respondent was previously awarded a final order of sole custody. 60 Misc 3d 1212(A) (NY County 2018). No such award of custody has been made here. Mr. O.’s evidence concerning who is actually caring for F. and whether he wants the child to be returned to the US is confusing and contradictory. On the one hand, Mr. O. originally filed a custody petition for F. in this Court and on 3/28/2022, through his attorney, represented that he wanted F. in the United States. On the other hand, Mr. O.’s previous affidavits and representations in court contradict his continued assertion that he played no role in F. being retained in Nigeria against Ms. O.’s wishes. Mr. O. simultaneously stated that Ms. O. is free to go to Nigeria to take F.4 while also refusing to disclose the child’s address. It has been a continuous pattern during court appearances for Mr. O. to either (1) deny having information or documents; (2) to agree to provide information or documents only for it not to be provided or to be outdated; and (3) failing to assist Ms. O. in obtaining any of the necessary paperwork for F., despite being aware that his assistance is necessary. Despite his previous request for this Court to award him custody of F., Mr. O. now seemingly supports his sister’s application for custody of the subject child. However, this unilateral support does not change the analysis of this Court concerning jurisdiction. Neither parent has prima facie right to custody in New York. DRL §240 (1)(a); §70(a). Therefore, one parent’s consent to the aunt’s application is insufficient to find that his relative is acting as a parent pursuant to section 76(1)(a) of the DRL. Under U.S. law, Mr. O. does not have the authority to make that arrangement and deprive Ms. O. of her rights as F.’s parent. Furthermore, it is important to note that Mr. O.’s most recent affidavit, dated November 11, 2022, once again contradicts previous assertions made regarding who has been providing long term care for F.. Despite stating in his September 15, 2022 affidavit that the child’s caregiver was Mrs. O, Mr. O. wrote in his petition that his eldest sister, who has filed to become F.’s guardian in Nigeria, was caring for F. since 2020. The attached exhibits clearly show that someone by the name of Oyeymi O. filed for guardianship, not a Mrs. O. Nigerian Proceeding Through counsel, Mr. O. submitted information concerning a pending case in Nigeria, apparently for custody of the Subject child. Critically, the Nigerian paperwork indicates that the documents were filed on October 18, 2022, after this Court’s September 23, 2022 decision on jurisdiction.5 Additionally, the Nigerian paperwork shows that Ms. O. is not a named respondent and did not receive notice of those proceedings, despite Mr. O. being listed as a respondent and provided with notice. The UCCJEA entitles a parent, whose parental rights have not been previously terminated, notice and opportunity to be heard. DRL §76-d(a). The UCCJEA “does not govern the enforceability of a child custody determination made without notice or an opportunity to be heard.” Id. at (2). This Court is not bound to follow decisions that do not meet the requirements of due process. See e.g. Consford v. Consford, 271 AD2d 106 (3d Dept 2000) (finding that the court was not required to give full faith and credit to a Texas custody order because Texas never possessed jurisdiction to determine the issue); Wells v. Van Coutren, 200 AD2d 577 (2d Dept 1994) (declining to recognize and enforce a Pennsylvania determination on due process grounds). Sherry Ann F. v. Bennett S., 131 Misc 2d 854 (Family Court Schoharie County 1986)(“[T]he application must be denied because the ex parte California Order was not made consistently with the provisions of the Parental Kidnapping Prevent Act or the Uniform Child Custody Jurisdiction Act and because respondent father has not yet been afforded fundamental due process of law — notice and an opportunity to be heard.). Furthermore, the action in Nigeria was filed over one year after Ms. O. filed her petition in New York. “Family Court, which has jurisdiction over the issue of custody, is not divested of that jurisdiction by the subsequent filing…” Karen W. v. Roger S., 8 Misc 3d 285 (Fam. Ct. Dutchess Cty 2004). Temporary Order of Custody Based on its determination concerning jurisdiction, this Court must address whether it has sufficient basis to order temporary custody prior to a full hearing. The issuance of a temporary order of custody is often disfavored absent a specified need or emergency. Martin R.G. v. Ofelia G.O., 24 AD3d 305 (1st Dept 2005). If the Court is contemplating the issuance of a temporary order, the Court must still consider the best interests of the child based on the totality of the circumstances. Assini v. Assini, 11 AD3d 417, 418 (2d Dept 2004). However, “Where the Court possess adequate relevant information to enable it to make an informed determination with respect to this issue, an evidentiary hearing is not necessary for a temporary custody determination.” Id. Additionally, the Court may consider whether exigent circumstances exist which make a temporary order necessary and “whether the parent awarded temporary custody is a suitable temporary custodian.” Ward v. Ward, 89 AD3d 1418 (4th Dept 2011) (“[T]he court did not err in transferring temporary custody of the parties’ daughter to the father prior to the custody hearing inasmuch as the father demonstrated the necessary exigent circumstances warranting the temporary transfer.”); Garcia v. Ramos, 79 AD3d 872 (2d Dept 2010) (citations omitted). In the instant proceeding the Court has sufficient information from each parent’s petitions, their respective affidavits filed throughout the case, their statements under oath, and the limited hearing conducted on September 23, 2022, to make a temporary custody order; additionally, compelling circumstances exist which require this Court to do so prior to the outcome of the full hearing. Uncontested facts: 1) The father is not seeking custody and the child is currently residing with neither parent. During oral argument on November 17, 2022, and through his papers in response to the current motion, Mr. O. did not ask for temporary custody. Indeed, Ms. O.’s application for custody is uncontested as Mr. O. withdrew his petition for the subject child. Mr. O.’s affidavits have not contested any facts in the ACS home study documenting Ms. O.’s ability to provide for the basic needs of the children including food, clothing, shelter, and educational needs. In granting a temporary order of custody to the mother, this Court is not choosing one parent over another, rather is awarding temporary custody to a parent over a non-parent. See Bennet v. Jeffreys, 40 NY2d 543 (1976). 2) The Mother has had no contact with the Subject child since the beginning of this proceeding over 15 months ago and has been separated from the Child’s siblings. While the Court has not yet had the opportunity to have a hearing regarding some of the disputed facts including allegations of parental alienation, excessive corporal punishment, and domestic violence, it is uncontroverted that Ms. O. has not been able to contact the subject child for the entire period of this proceeding. Additionally, F.’s three siblings reside in New York with Ms. O. and have only been able to speak with the child during visits with their father. Lack of Position by AFC Mr. O.’s counsel argued that the Court has insufficient information to make a temporary order without input from the Attorney for the Child regarding the child’s position. However, the position of the child is only one of many factors that the court must consider and is not determinative. Xiomara M. v. Robert M., 102 AD3d 581 (1st Dept 2013); Cornell v. Cornell, 8 AD3d 718 (3d Dept 2004). The Court agrees that generally, the Court should have information from the Attorney for the Child prior to issuing an award of temporary custody to either parent. In this case however, the Court finds that the AFC will be unable to gain access to child without the issuance of a temporary order. It is uncontested that the Mr. O. has access to the Subject Child as shown through calls made to the child with siblings during CFS visits. However, Mr. O. has not facilitated the AFC’s or Ms. O.’s contact with the Subject Child, despite being the only person who has successfully been able to contact the child. Exigent Circumstances Exigent circumstances exist sufficient to allow the Court to decide temporary custody. The pending proceeding in Nigeria, far from forming a basis for this Court to relinquish jurisdiction, in fact provides additional impetuous for this Court to act prior in order to ensure that Ms. O. is not deprived of custody without due process of law and in contravention of this Court’s September 23, 2022 order and that the other Subject Children are not forever separated from their sibling. For those reasons, it would be in F.’s best interest to grant Ms. O. a temporary order of sole custody. ORDER: THE MOTION IS GRANTED IN PART AND DENIED IN PART: The motion is decided as follows: (1) a temporary order of sole physical and legal custody is granted to the Mother Mrs. O. during the pendency of the proceedings; (2) directing Mr. O., to execute any necessary documentation required to allow the child F. to legally travel from Nigeria; (3) permitting Ms. O. to designate an agent to transport F. to and from any appointments with Nigerian and/or United States government entities for the purpose of applying for and obtaining a Nigerian passport for F. as well as a visa to allow such travel; (4) permitting Ms. O. to designate a responsible adult to chaperone and accompany F.; direction Mr. O. to turn over to Ms. O. any and all citizenship, identification, immigration and travel documents for the child F.; As the Court took no testimony concerning expenses, income or any material relevant to costs, the Father is not directed to pay the reasonable and necessary travel expenses for F. and his designated adult chaperone from Lagos, Nigeria to New York. This ORDER is to be served on all parties, counsel, and the Court in Nigeria. Dated: December 5, 2022
