Locklear v. Andrews

Summary

The Appellate Division, Second Department, reversed the Family Court’s sua sponte dismissal of an incarcerated father’s visitation petition for lack of jurisdiction. The court held that the Family Court needed to investigate whether a prior New York custody determination existed, examine conflicting evidence concerning the child’s residence and home state, and address jurisdiction with the father present or properly produced. The matter was remitted for further proceedings and a new jurisdictional determination.

Holdings

1. The Family Court erred in determining that it lacked jurisdiction without investigating whether a New York court had previously made a custody determination and without examining the conflicting residence evidence under oath before deciding whether New York was the child's home state when the petition was filed.
2. The Family Court should not have determined jurisdiction and dismissed the petition while the incarcerated father was absent, where he had not willfully refused to appear and had not waived his appearance and the court had previously directed that he be produced.

Questions Presented

1. Whether the Family Court could determine that it lacked jurisdiction based solely on the mother's brief, unsworn open-court statement concerning her residence and without determining whether a New York court had previously made a custody determination.
2. Whether the Family Court could decide the jurisdictional issue and dismiss the visitation petition while the incarcerated father was absent despite the court's prior directive that he be produced for a video appearance.

Disposition

reversed_and_remanded