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Felty v. Felty

July 14, 2009


APPEAL by the mother in a child custody proceeding pursuant to Family Court Act article 6, as limited by her brief, from so much of an order of the Family Court (Debra J. Kiedaisch, J.), entered in Orange County on May 29, 2008, as granted the father's motion to dismiss the petition for lack of subject matter jurisdiction and dismissed the proceeding.

The opinion of the court was delivered by: Belen, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.


(Docket No. V-5667-07)


The principal issue on this appeal is whether, in this child custody proceeding, New York should exercise home-state jurisdiction. Although the mother in this case had moved the parties' two children from the Commonwealth of Kentucky to the State of New York six months prior to the commencement of this custody proceeding, she allowed the children to vacation with their father in Kentucky for six weeks during this same period. Under the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter the UCCJEA) (28 USC § 1738A, as added by Pub L 96-111, 94 US Stat 3569, and amended in various sections of titles 22 and 28 of the United States Code; Domestic Relations Law article 5-A), both a parent and his or her children must reside in a state for at least six months before the commencement of a child custody proceeding in order for that state to be deemed the "home state" within the meaning of the UCCJEA. We find that New York has home-state jurisdiction pursuant to Family Court Act article 6 and the UCCJEA since the children's six-week vacation with their father in Kentucky did not constitute a change in their residency.

The petitioner, Carla Ann Felty (hereinafter the mother), seeks review of a determination of the Family Court, Orange County, entered May 29, 2008, granting the motion of the respondent, James R. Felty (hereinafter the father), to dismiss the proceeding for, inter alia, lack of subject matter jurisdiction pursuant to CPLR 3211(a)(2). The court held that neither Kentucky nor New York was the subject children's home state, but concluded that Kentucky was the more convenient forum, and consequently transferred the custody proceeding to the Commonwealth of Kentucky, where a trial has been scheduled.

The parties met through the Internet in 2003, when the mother was studying veterinary medicine at Mississippi State University and the father was a teacher studying for a Master of Education degree from the University of Western Kentucky. The parties married on June 5, 2004, in Kentucky. Six months later, the mother became pregnant, but continued her veterinary studies and graduated in May 2005. Upon graduation, the mother moved to New York, where the father joined her soon thereafter.

On September 2, 2005, the mother gave birth, in New York, to twin daughters, Jessica Mae Felty and Jamie Elaine Felty. On October 31, 2005, both parties and the children moved to Kentucky. In August 2006 the parties purchased a house in Kentucky.

In January 2007 the father commenced an action for divorce in Kentucky Family Court. On January 11, 2007, while the Kentucky divorce action was pending, the Kentucky Family Court issued a pendente lite visitation order, which directed equal visitation time between both parties, and directed the parties to participate in mediation. As a consequence of the mediation, the parties reached an agreement regarding the distribution of most of their property, but could not reach a custody agreement.

In April 2007 the mother forwarded a proposed settlement order to the father, which would have held the divorce action in abeyance for one year, allowed the mother to return to New York for at least one year to pursue her career as a veterinarian, and outlined a living arrangement and schedule for residential custody, which provided that the parties and children would, over the next two years, alternate between Kentucky and New York. However, neither the parties nor the Kentucky Family Court signed the proposed settlement order.

On April 20, 2007, the mother and children moved to New York to live with the mother's parents. Thereafter, the parties sold the house they had purchased together in Kentucky and the father moved in with his parents in Kentucky. On June 7, 2007, both parties signed an "agreed order" to dismiss the Kentucky divorce action without prejudice to reinstatement of the action. From June 9, 2007, through July 14, 2007, the father resided with the mother and the children in the maternal grandparents' home in New York.

The children visited their father in Kentucky at his parents' home from July 15, 2007, until August 27, 2007, an approximately six-week period that figures importantly in this custody litigation. While in Kentucky, the children did not have their own bedrooms but, rather, slept on a mattress on the floor of the father's bedroom, during which time they contracted ...

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