FAMILY COURT OF NEW YORK COUNTY OF ORANGE Family File No. 15461 O-254-92 V-2211/2212-92 X-2905/2906-92 Martha Crofton vs John Crofton DECISION AND ORDER 02 Jul 1992 HON. ANDREW P. BIVONA Robert D. Arenstein, Esq. 295 Madison Ave. New York, NY 10017 Attorney for John Crofton Erik Indzonka, Esq. LEGAL AID SOCIETY OF ORANGE COUNTY, INC. P.O.Box 328 Goshen, NY 10924 Attorney for Martha Crofton The above captioned captioned proceedings were brought in this Court by parties who are husband and wife and are the parents of two children: Emma, age 8 and Chloe, age 5. Martha Crofton filed the first two petitions on June 15, 1992. The first, a family offense petition alleging the commission of such offenses by John Crofton and requesting an Order of Protection in favor of the petitioning mother and the two children. A temporary order was granted upon. the ex parte application and testimony of the Petitioner. The second petition is a custody petition in which the petitioning mother seeks an order of this Court granting @er legal and physical custody of the children. John Crofton filed a petition on June 18, 1992 seeking relief pursuant to the Hague Convention, WMHFN-1 alleging a wrongful taking WMHFN-2 of the children by Martha Crofton from their residence in the United Kingdom. This Court issued a notice of such petition, WMHFN-3 and upon the return date deemed such service as was accomplished sufficient to give Martha Crofton notice of such proceeding. WMHFN-4 There was no appearance by Martha Crofton and testimony was taken, after which this Court issued a warrant for the return of the children. Said warrant was executed on July 1, 1992. The parties and the children appeared in Court on July 1, 1992, at which time each party, through counsel, acknowledged receipt of the pleadings filed in this Court by the other. The matter was thereafter adjourned to July 2, 1992 for the parties appearance with regard to the applications of each. Temporary physical custody of the children was placed in John Crofton, pending such return to this Court. Now, upon this Court's consideration of the pleadings, prior proceedings and the appl.icable law, it is determined as follows: Jurisdiction This Court has obtained personal jurisdiction over each of the parties, based upon their respective applications to this Court, WMHFN-5 as well as their having been served with the other party's pleadings within this jurisdiction. This Court has subject matter jurisdiction pursuant to the United States Constitution, the Hague Convention, WMHFN-6 the New York State Constitution and the Statutes of the State of New York. WMHFN-7 Findings of Fact The parties are married to each other and of that marriage have two children, Emma and Chloe. The parties resided in the United Kingdom at all times since the births of the children, John Crofton being a British subject and Martha Crofton a citizen of the United States. The children may in fact have dual citizenship. WMHFN-8 On or about June 8, 1992, Martha Crofton departed England, taking with her the parties' two children, and arrived in the United States on the same date. Thereafter application was made to this Court. WMHFN-9 On or about June 10, 1992, John Crofton applied to the High Court of Justice, Family Division, in and for the Stocton on Tees District Registry for an ex parte order. Said order was granted and among other relief, made the children wards of the Court. That matter is now pending, and by reason of the temporary order and the pleadings submitted to the High Court of Justice having been included in those papers filed and served in the matter before this Court, the High Court of Justice has obtained jurisdiction over the parties. Conclusions of Law Both this Court and the High Court of Justice of the United Kingdom have properly asserted jurisdiction. WMHFN-10 The Hague Convention is applicable to this matter and is analagous to the Uniform Child Custody Act, WMHFN-11 which is a compact between the several states of the United States of America. The purpose of the international treaty and the interstate compact is to allow that court with the predominent contact with the children to adjudicate their best interests. As such, residency requirements are considered to be the leading criteria. WMHFN-12 New York State's adoption of the Uniform Child Custody Act is a statement of public policy that the said precepts should be followed. This Court, having considered the foregoing, finds that the jurisdiction having the predominent contacts with the children, and the Court best able to determine their best interest, is the court in that jurisdiction in which the children have resided for all of their lives. Accordingly, it is ORDERED, that all of these proceedings now pending in this court be and the same are hereby transferred to the High Court of Justice, Family Division, District Registry for Stocton on Tees for adjudication, together with that cause pending under Matter Number 92 WG 354, and it is further WMHFN-13 ORDERED, that the Clerk of this Court transmit copies of each party's original petition together with a certified copy of this Order to said Court, and it is further WMHFN-14 ORDERED, that the children shall continue to be Wards of the High Court of Justice pursuant to the Order of that Court dated June 10, 1992, provided however that this Court shall retain jurisdiction over the parties until such time as each of the parties has appeared in the High Court of Justice and until such time as each of the parties has fully complied with this Order, and it is further WMHFN-15 ORDERED, that John Hugh Crofton and Martha Crofton shall cause the return to the United Kingdom of the children Emma Crofton and Chloe Crofton, and physical, not legal, custody is, upon consent of the parties, placed in them for that purpose, and it is further ORDERED, that the parties shall appear in and submit to the jurisdiction of the High Court of Justice, District Registry for Stocton on Tees, United Kingdom, not later than ten (10) days from the date of this order, or at such other time as that Court shall direct. Dated: Goshen, New York United States of America July 2, 1992 ENTER, /s/ Andrew P. Bivona ________________________ HONORABLE P> VIVONA Family Court Judge -------------------- NOTICE: All footnotes are from Wm. M. Hilton -------------------- 1. The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 [The Convention]. 2. The Convention, Art 3 3. The Convention, Art 16. When such notice is issued, the courts are restrained from deciding on the merits of the underlying custody/access action. 4. Notice under The Convention is determined by International Child Abduction Remedies Act, 42 USC 11601 et seq (ICARA), at 11603(c). 5. Since ICARA states that notice is governed by interstate custody law, this would be proper notice. See 9 Uniform Laws Annotated (ULA) 5(d). 6. 42 U.S.C. 11603(a) 7. New York's version of the Uniform Child Custody Jurisdiction Act (UCCJA), DRL 75-a through 75-z. 8. This would make the United Kingdom (UK) the "Habitual Residence" of the children within the meaning of Art 3 of The Convention. 9. Since, under UK law, the parents have joint custody of a child absent an order of a court, the taking of the children would be in derrogation of the rights of custody of the left behind parent and therefore a "Wrongful Removal" within the meaning of Art. 3 of The Convention. 10. This may not be true, except in a very limited sense. It would appear (although this is not clear) that the action in the UK was commenced prior to the action in New York. That being the case 9 ULA 5 prohibts New York from exercising any Child Custody Subject Matter Jurisdiction (CCSMJ) it may have. From the facts given it is very doubtful, nearly to the point of being a conclusion, that New York did not have CCSMJ. The UK was the "Home State" of the children and only the UK had "Significant Contacts" with the children. New York could, but only for a limited period of time, exercise "Emergency" CCSMJ while the matter was being sorted out. 11. While there is some similarity, the UCCJA and The Convention differ materially. Under the UCCJA there needs to be some order for custody, properly made. Under The Convention there needs only be a "Wrongful Removal" and, absent a finding of one of the exceptions, the child(ren) are returned to their "Habitual Residence". See the file ANTON.ART in the Hilton House Data Base. 12. This is a correct assessment of The Convention. See No. 34 in the Perez-Vera Report, PEREZ.RPT in the Hilton House Data Base. 13. This appears to be an application of 9 ULA 22 and possibly 9 ULA 7(h). 14. See FN 13 15. This order ensures that its orders will be carried out and that, pending a hearing in the UK, custody will be maintained in one of the parties or the UK Court. See file RTNORD.CA and RTNORD.FRG in the Hilton House Data Base.