Case Update (24 Nov 2021): Joseph II v. Luisa JJ; home state; service overseas

The parties, Joseph and Luisa, are the parents to one child, born in 2013. They resided primarily in NY during their marriage, but also spent extended time at their second home in Italy. In July 2019, they entered a separation and settlement agreement providing for joint legal and shared physical custody, with the child residing primarily in Italy with Luisa, at least until July 1, 2022 when the child would start residing half of the year in Italy, and half of the year in NY. The agreement was never incorporated into a court order anywhere. In June 2020, Joseph filed a suit for divorce and sole custody in NY. Luisa responded arguing lack of subject matter and personal jurisdiction.

The Supreme Court, Appellate Division, 3rd Department, concluded that Italy was the child's home state under the UCCJEA. The trial court had improperly conducted a "totality of the circumstances" test to conclude that the home state was New York. It should have stuck squarely within the confines of the UCCJEA. "The UCCJEA operates like a flowchart, where, if jurisdiction is proper under a prescribed situation, the analysis need not proceed to the subsequent situations". Since there was no existing child-custody determination (i.e., order), the court should have first assessed the child's home state on the date Joseph filed the lawsuit in NY. Given that the child had resided primarily with his mother in Italy for more than six consecutive months immediately before Joseph's lawsuit, it was the home state. The fact that the child had 2 visits of a few weeks each during that timeframe did not detract from Italy being the home state - those trips were merely temporary absences from Italy. Presumably, had the parents incorporated the terms of their parenting agreement into a NY court order proximate to when they signed it, this would be a completely different analysis, where NY would have exclusive, continuing jurisdiction under the UCCJEA.

Luisa also argued a lack of personal jurisdiction because Joseph was able to secure substituted service of the summons and complaint by email. Italy and the United States are treaty partners under the Hague Service Convention. NY law requires personal service of the papers on Luisa. If impractical, then Joseph could seek a different manner of service by filing a motion. He was required to make competent showings as to "actual efforts made to effect service." Unfortunately, he made no such showing. He provided the court with an email, dated 2 months after he filed the lawsuit, from his process server estimating service under the Hague Service Convention to take roughly 18-20 weeks. This is not atypical, and does not show impracticality.