STATE OF NEW YORK FAMILY COURT : COUNTY OF NIAGARA ____________________________________________________ NEIL V. PATTERSON, Petitioner, -againstDocket No.

V-3454-12 SARAH A. PATTERSON, V-3455-12 Respondent. File No. 69104 _____________________________________________________ STATE OF NEW YORK } COUNTY OF NIAGARA} ss.: DANIELLE M. RESTAINO, ESQ., an attorney duly admitted to practice law in the State of New York, being duly sworn deposes and states: 1. I am an attorney licensed to practice law in New York State with offices at 731 Third Street, Niagara Falls, NY 14301. 2. I have been assigned by order of Niagara County Family Court dated December 6, 2012 (Hon. Kathleen Wojtaszek-Gariano) to represent the two minor children, Leah Q. Patterson (D.O.B. 8/2/2007) and Okwaho S. Hall (D.O.B. 10/25/2008) in the above referenced matter and as such am familiar with the facts and circumstances of this case. 3. That Respondent, through her attorney, has brought a motion to dismiss the Petition for custody based on the premise that this court lacks jurisdiction because the children are Indian children as defined under the Federal Indian Child Welfare Act of 1978, 25 U.S.C 1901-1963 (ICWA). 4. Respondent contends that because this proceeding is a child custody proceeding the ICWA gives the tribes of the children exclusive jurisdiction over this proceeding under 25 U.S.C. 1911, thus excluding this court from exerting its jurisdiction. See Exhibit A. 5. That 25 U.S.C. 1903 defines a child custody proceeding for the purposes of the ICWA as, foster care placement, termination of parental rights, preadoptive placement, and adoptive placement, none of which characterizes the set of facts and circumstances before the court in this proceeding. See Exhibit B. 6. That 25 U.S.C. 1903 further indicates that such terms shall not include an award, in a divorce proceeding, of custody to one of the parents. See Exhibit B. 7. That the facts of the instant action are comparable to that of a custody dispute within a divorce proceeding in that the ultimate award of custody will be to one Indian parent or the other. ATTORNEY AFFIDAVIT IN RESPONSE TO RESPONDENTS MOTION TO DISMISS

8. That the United States Department of the Interior, Bureau of Indian Affairs published guidelines for state courts in Indian child custody proceedings to help state courts apply the ICWA appropriately. Attached as Exhibit C. 9. That these guidelines explicitly state in pertinent part:
Child custody disputes arising in the context of divorce or separation proceedings or similar domestic relations proceedings are not covered by the Act so long as custody is awarded to one of the parents.

Bureau of Indian Affairs, U.S. Dept of Interior, Notice, Guidelines for State Courts; Indian Child Custody Proceedings, section B(3)(b) (1979). 10. That these guidelines go on to explain in the commentary to section B(3) that the term divorce proceeding is to be construed broadly so as to include domestic relations proceedings between parents and not solely proceedings meant to dissolve a marriage. Id. The commentary goes on to explain:
The legislative history indicates that the exemption for divorce proceedings, in part, was included in response to the views of this Department that the protections provided by this Act are not needed in proceedings between parents. In terms of the purposes of this Act, there is no reason to treat separate maintenance or similar domestic relations proceedings differently from divorce proceedings. For that reason the statutory term "divorce proceeding" is construed to include other domestic relations proceedings between spouses. Id.

11. That in the instant action there is a custody petition filed by the father of the infant children naming the mother as respondent. There is no question that this proceeding is the type of proceeding that was meant to be excluded from the ICWA because the protections afforded by the federal statute to Indian children are not needed as the ultimate award of custody will be to one Indian parent or the other, both of which will raise these two children in the lifestyle and traditions of their tribe. 12. That in 1989, the United States Supreme Court discussed the legislative intent of the ICWA in Mississippi Band of Choctaw Indians v. Holyfield et al, 490 U.S. 30 (1989). While in that case the ultimate issue was the definition of domicile for purposes of the application of the ICWA, the Court, in its opinion, made clear the intention of the ICWA was to preserve the traditions and customs of Indian tribes across the country. It seeks to provide protections to Indian children, families and tribes from state welfare agencies that prior to the act were removing Indian children from Indian families and placing them with white families diluting traditional Indian culture. See Exhibit D. 13. That is not the case in the instant action where both parties are Indian parents seeking a custody determination regarding their own children.

14. That because of the foregoing the ICWA does not apply to the case at bar and this court can exert its jurisdiction over the matter. 15. That in response to Respondents contention that notice of this proceeding is to be given to the Indian childrens tribes, 25 U.S.C. 1912(a) clearly states such notice is to be given in proceedings where one party is seeking the foster care placement or termination of parental rights to an Indian child. That is not the case here where neither party is seeking the foster care placement of the subject children, nor is anyone seeking to terminate Respondents parental rights. Therefore no notice is required to be given. See Exhibit E. 16. That upon information and belief the petitioning father had concerns that the respondent mother may remove the children from Niagara County and not return them due to her own abrupt move out of Niagara County. These extraordinary circumstances justify the granting of the order to show cause. 17. That based on the foregoing Respondents motion to dismiss should be denied in its entirety. Dated: February 15, 2013 Niagara Falls, New York ____________________________ DANIELLE M. RESTAINO, ESQ. Attorney for the Children 731 Third Street Niagara Falls, NY 14301 (716) 285-8185 Sworn to before me this 15th day of February, 2013.

______________________________ NOTARY PUBLIC