
    Norman Martin, Respondent, v Deborah L. Martin, Appellant.
    Argued June 8, 1978;
    decided July 13, 1978
    APPEARANCES OF COUNSEL
    
      Richard H. Weis and Allan H. Carlin for appellant.
    
      Joseph O. Giaimo for respondent.
   OPINION OF THE COURT

Per Curiam.

Petitioner father seeks permanent custody of two boys, now aged seven and eight, alleging that the mother, his second wife, who was awarded custody under the terms of a separation agreement incorporated into a Florida judgment of divorce, is an unfit parent (Domestic Relations Law, § 70). Special Term denied the father’s application, declining to exercise jurisdiction. The Appellate Division [52 AD2d 144] reversed, and ordered a hearing, at which the father was awarded custody. The mother appeals directly from the judgment at Supreme Court pursuant to CPLR 5601 (subd [d]) raising only the correctness of the reversal by the Appellate Division and the direction of a hearing (see Matter of Farber v U. S. Trucking Corp., 26 NY2d 44, 55, stating that a CPLR 5601, subd [d], appeal brings up for review only the prior order of the Appellate Division, and that the scope of review is "only” the nonfinal order).

The issue involves only application of the principles most recently expressed by this court in Matter of Nehra v Uhlar (43 NY2d 242). Since the children have been in New York largely because of the father’s repeated disregard of the terms of the Florida judgment, the judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the petition dismissed.

The father’s allegations of misconduct by the mother need not be detailed. It suffices to note that her conduct, if the charges are true, would likely make her an unfit parent, although despite these grave charges the father returned the children at least once after having retained them unlawfully. Not justified, however, was the father’s resort to self-help. He has, on three separate occasions, unlawfully taken or retained custody of the children in violation of the Florida divorce judgment. Moreover, even if the father is assumed to have been motivated by the interests of his children, the record reveals that the father several times left the children with his first wife in New Jersey or with his daughter in a college dormitory also in New Jersey.

The best interest of the children is, of course, the prime concern (Domestic Relations Law, § 70; Finlay v Finlay, 240 NY 429, 433-434 [Cardozo, J.]). That the children’s best interest must come first, however, does not mean that the courts of this State should disregard the prior Florida judgment and determine, as if writing on a clean slate, who would make a better parent. Except for interludes caused by the father’s wrongful retention of the custody of the children, the Martin boys lived in Florida from the time of their parents’ separation in 1970, when the younger boy was newborn, to the time of the father’s most recent abduction in December, 1976. If their mother be an unfit parent, that is a matter for the Florida courts to decide. Florida is where the boys have been raised, and where the witnesses are most likely to be found. It is not appropriate for the courts of this State, on the present record, to presume to say that the children would be better off with their father.

This deference to the determination of the Florida courts, contrary to assertions in the dissent, is not impliedly or expressly an application of forum non conveniens. Instead, principles of comity require that the Florida judgment not be lightly cast aside (Matter of Lang v Lang, 9 AD2d 401, 406-407, affd 7 NY2d 1029). Forum non conveniens is concerned with the convenience of parties and courts; the comity principle here is concerned with the welfare of children and restraint on abuse of the judicial process.

Certainly, it is beyond cavil that in custody cases principles of comity may not be rigidly applied to the detriment of the children (Matter of Bachman v Mejias, 1 NY2d 575, 581). But that is not the point. The point is rather that successive contradictory determinations by courts of sister States, even if with "jurisdiction”, are unseemly and intolerable in a Federal union. Such contradictory determinations are hardly justified by the flexibility of res judicata and full faith and credit principles in child custody matters. That is the sense of the holding in the Nehra case and of the Uniform Child Custody Jurisdiction Act adopted by many of the States to rid child custody matters of the incubus of child-snatching and forum-shopping.

The policy articulated in the Nehra case (supra) and in the Uniform Child Custody Jurisdiction Act, to become effective in New York on September 1, 1978, is a strong one (L 1977, ch 493; Domestic Relations Law, § 75-i, subd 2). Of course, it is not an absolute so long as the paramount concern remains the best interest of the child rather than the dignity of courts (see Matter of Lang v Lang, 9 AD2d 401, 405, supra). A different case would be presented if the immediate physical and mental welfare of children required, vitally and directly, that the children be retained in this jurisdiction and that the courts in this State determine who shall have custody of them. Factors raising those difficult issues are not present in this case. It is the courts of Florida that should adjudicate the ultimate custody dispute if "priority * * * be accorded to the judgment of the court of greatest concern with the welfare of the children” and "[djenigrated in rank * * * be the consequences of child-snatching” (Matter of Nehra v Uhlar, 43 NY2d 242, 251, supra). There is nothing presented in this case which suggests that the courts of the sister State are not competent or ready to do justice between the parties and for the children.

Accordingly, the judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the petition dismissed.

Fuchsberg, J.

(dissenting). The majority does not dispute either the settled proposition that the physical presence of the children was sufficient to confer jurisdiction upon our courts (e.g., Matter of Hicks v Bridges, 2 AD2d 335, 339; cf. Matter of Berlin v Berlin, 21 NY2d 371, cert den 393 US 840) nor that the Florida decree, while entitled to great weight, is subordinate to the best interests of the children — the issue of "paramount concern” (Matter of Nehra v Uhlar, 43 NY2d 242, 250). Instead, in what smacks of an implicit and unwarranted obeisance to forum non conveniens and comity principles, its decision jeopardizes the children’s best interests.

The pertinent facts, not seriously disputed, speak for themselves:

Petitioner, a full professor, at whose current post at New York University he has been engaged since about 1962, married the respondent in 1969. Two children, currently ages seven and eight, were born of the marriage. In December, 1970, shortly after the birth of the second child, respondent abandoned her husband and set up a residence in Clearwater, Florida. Her departure eventually led to a divorce, prior to which the parties entered into a separate agreement in which they agreed that the children, who were then still close to the baby stage, were to be in the custody of the mother with visitation rights for the father. This provision was incorporated in the final degree in 1972.

In December, 1974, the father requested that the children come to visit him for the Christmas holidays. The respondent then sent them to New York willingly, although it is claimed that an oral agreement to return them in January was violated when the petitioner kept the children in Washington, D.C., and in New Jersey until they were returned to Florida in June, 1975. The children next came to New York in November, 1975, once again voluntarily. It was on that occasion that the petitioner commenced this action seeking custody. Thus, at no time prior to this custody proceeding had the father removed the children from their Florida domicile.

In the intervening time, many troubling things about the wife’s life-style, whose nature was such that it was bound to have a most pernicious effect upon the children, had come to the father’s attention. We can no more ignore that now than he did then. Certainly that his marriage to the respondent nine years ago was preceded by the unorthodox relationship under which they previously had lived together did not require him to abdicate his concern as a father these many years later. And the majority’s gratuitous characterization of him as a "nomad” simply because his work as a consultant in his field would at times take him out of town hardly changes the graphic picture of the mother image in this case.

As the petition describes in detail, at one point the mother was evicted from her apartment because of her wholesale practice of entertaining male visitors, most of whom were transients or drug addicts. The eviction brought no metamorphosis; additional affairs with at least 10 different men, each identified in the record by name, are reported. According to a neighbor, respondent admitted sleeping in the same bed as her "boyfriends” and her children in order to help them become "sexually uninhibited”. She has been linked to the sale of marihuana and introduced its use to the children. On one occasion, her house was included in a successful police "raid” for drugs. On another, a complaint was filed against her after the police had been called to her locked car, where the children, then three and one-half and one and one-half, had become hysterical while she was sojourning at a bar. Her denial of only some of these incidents — and that by affidavit only, though she did not hesitate to come to New York on other occasions — covers but some of the tiles in this unhappy mosaic.

Thus, it is difficult to imagine, in the context of a still viable and ongoing custodial relationship, circumstances more clearly adverse to the best interests of formative children. If ever great weight is to be afforded that consideration in determining whether to exercise jurisdiction, this case demands it. For, "not acceptable as simply an 'alternative lifestyle’ which people in an open society are entitled to follow, and courts are required to adopt as appropriate for the rearing of a little child” is the life-style allegedly led by the mother of the children with whom we are here concerned (Matter of Ray A. M., 37 NY2d 619, 624).

It is not surprising then that Special Term, after holding the factual hearing which in its discretion the Appellate Division understandably believed was urgently required in the interests of the children (cf. Matter of Ray A. M., supra; Bunim v Bunim, 298 NY 391), found that in this instance the mother’s "conduct apparently is one in which she has lived a life which appears not to be a proper one for the bringing up of children of tender and adolescent age * * * [I]t would not be in the best interests of the children to remain in the custody of the respondent.”

Especially under these circumstances, I perceive no basis for overturning the Appellate Division’s order on the ground that our courts should have declined to exercise jurisdiction in the first instance. Indeed, in Irrigation & Ind. Dev. Corp. v Indag S. A. (37 NY2d 522, 525), we noted that it is our established policy not to "interfere with the Appellate Division’s exercise of discretion in granting or denying a motion to dismiss on the ground of forum non conveniens unless there has been an abuse of discretion as a matter of law or unless the Appellate Division, in exercising that discretion, has failed to take into account all the various factors entitled to consideration”. We "do not substitute our evaluation of the weight to be attached to such factors, singly or in combination, for that of the lower courts” (Hadjioannou v Avramides, 40 NY2d 929, 931).

If such a discretion is not to be lightly interfered with in a commercial context, how much more important is it that it not be disregarded where the stakes are the best interest of young children? In particular, the relegation of the New York-domiciled husband to a custody suit in Florida in the factual .and legal posture of this case is an interference with discretion in which I do not believe we should engage.

Indeed, the welfare of infants "transcends the rule of comity” as well (Matter of Bachman v Mejias (1 NY2d 575, 581). Therefore, it matters not that the majority apparently expects the result in Florida to be consistent with that of Special Term. The vagaries and cost of duplicative litigation 1,500 miles away are not inconsequential. Most important, to shuttle the children, who have now been in the care of the father for a considerable time, back to the mother and the milieu in which she has chosen to live, could not be less desirable (Matter of Ebert v Ebert, 38 NY2d 700, 703).

The point is that, under whatever rubric may be brought to bear — be it comity, forum non conveniens or other — the particular mix of factual and legal considerations in this case makes it an especially inappropriate one in which to substitute our judgment as to whether jurisdiction should be accepted for that of the Appellate Division of our court of general jurisdiction.

In short, unless we are to subscribe to the proposition that a determination as to whether the courts of this State should retain jurisdiction of custody matters must be made without any factual inquiry beyond the papers presented, the judgment and the order of the Appellate Division brought up for review should be affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur in Per Curiam opinion; Judge Fuchsberg dissents and votes to affirm in a separate opinion.

Judgment reversed, etc. 
      
       Explicit reference in the dissent to the charges of misconduct by the mother, however irrelevant, suggests response.
      The couple had met when the mother was employed as a clerical assistant by a professor of law in the same university in which the father was a professor in the business school. She is much younger than the father and moved to Florida with the children only upon breakup of the marriage.
      
        The misconduct detailed in the father’s affidavit is not "unquestioned”; it is disputed. The mother denies, in her answering papers, most of the "aifairs” alleged by the father. She also denies any police raid on her home. And she denies sleeping with male friends in the presence of the children.
      Moreover, the mother’s affidavit, if believed, indicates that the father may be a less than fit parent. The father, a man then over 50, divorced his wife of many years only two months before marrying petitioner. At the time of their marriage, the couple’s oldest child was already born, and the mother had had two abortions as a result of her relations with the father. In response to allegations that the mother smoked marihuana in front of the children, the mother accuses the father of doing the same. The father appears to be something of a "nomad”, and, as noted, when inconvenient to care for the children himself, he has left them out of State with his first wife or his daughter, then a college student.
      None of this is relevant on the limited appeal before the court. The charges and countercharges have never been resolved. The determination at the hearing referred to in the dissent is not brought up for review on this appeal pursuant to CPLR 5601 (subd [d]). At Supreme Court the only witnesses who testified were the father and a single hostile neighbor of the mother in Florida. The mother, evidently because the hearing was held in New York far from all witnesses, did not participate in the hearing and called no witnesses. Thus, the inferences drawn in the dissent are unsupported in the evidentiary record before this court.
     
      
      . The majority’s statement that the petitioner "abducted” the children in 1976 by having them flown to New York ignores the fact that, by that time, though its judgment had not been formally entered, the Supreme Court had filed its opinion awarding custody to the father. Moreover, since the order of the Appellate Division which had found that New York had jurisdiction preceded that event, it should not now be considered as a basis for a reversal (see Cohen and Karger, Powers of the New York Court of Appeals, § 73, p 315, n 21).
     
      
      . Though this hearing took place subsequent to the entry of the Appellate Division order from which the wife appeals, we are not required to ignore it (cf. Cohen and Karger, Powers of the New York Court of Appeals, § 168, p 640).
     
      
      . By choosing to appeal under CPLR 5601 (subd [d]) respondent waived appellate review of these findings (see, e.g., Matter of Farber v U. S. Trucking Corp., 26 NY2d 44, 55).
     