Carrion Soto Viruet & Kelley LLP, New York, NY
(Christopher A. Carrion of counsel; Christopher J. Whalen on
the brief), for appellant.
P. Simmons, Brooklyn, NY (Rohan Grey and Janet Neustaetter of
counsel), attorney for the child.
PRISCILLA HALL, J.P. ROBERT J. MILLER FRANCESCA E. CONNOLLY
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
by the father from an order of the Family Court, Kings County
(Lisa Aschkenasy, Ct. Atty. Ref.), dated January 13, 2016.
The order dismissed, for lack of subject matter jurisdiction,
the father's petition to modify a foreign custody order.
that the order is reversed, on the law, without costs or
disbursements, and the matter is remitted to the Family
Court, Kings County, for further proceedings consistent
subject child was born in 2007 and, on May 26, 2009, the
Court of Common Pleas, Lebanon County, Pennsylvania, issued a
custody order granting the mother primary physical custody
and the father partial custody and visitation. Sometime after
May 26, 2009, but before April 1, 2015, both parties
relocated to New York. On April 1, 2015, the mother moved to
New Jersey, but the subject child stayed with the father in
New York until early June 2015. On November 9, 2015, the
father commenced this proceeding in the Family Court, Kings
County, to modify the Pennsylvania custody order. Based upon
the mother's April 1, 2015, move to New Jersey, the
Family Court found that the subject child's home state
was New Jersey and dismissed the father's petition for
lack of subject matter jurisdiction. The father appeals.
to the Uniform Child Custody Jurisdiction and Enforcement Act
(Domestic Relation Law article 5-A; hereinafter UCCJEA), a
court of this state may modify a child custody determination
made by a court of another state if the court has
jurisdiction to make an initial determination under Domestic
Relations Law § 76(1)(a) or (b), and, inter alia,
"the child, the child's parents, and any person
acting as a parent do not presently reside in the other
state" (Domestic Relations Law § 76-b). A court
has jurisdiction to make an initial custody determination
pursuant to Domestic Relations Law § 76(1)(a) if
"this state is the home state of the child on the date
of the commencement of the proceeding, or was the home
state of the child within six months before the commencement
of the proceeding and the child is absent from this state but
a parent or person acting as a parent continues to live in
this state " (emphasis added). Under the UCCJEA,
the definition of "home state" includes, in
relevant part, "the state in which a child lived with a
parent or a person acting as a parent for at least six
consecutive months immediately before the commencement of a
child custody proceeding.... A period of temporary absence of
any of the mentioned persons is part of the period"
(Domestic Relations Law § 75-a).
the Family Court erred in determining that New Jersey was the
child's home state based upon the mother's April 1,
2015, move to New Jersey, since the child resided with the
father in New York until early June 2015, and the father
commenced this proceeding less than six months later, on
November 9, 2015. Therefore, the child did not live with the
mother in New Jersey for at least six consecutive months
immediately before the commencement of the proceeding.
Domestic Relations Law § 76(1)(a) permits New York
courts to exercise jurisdiction if, inter alia, New York
"was the home state of the child within six months
before the commencement of the proceeding." However, as
the record does not disclose the date the child moved to New
York, we cannot determine whether the child resided in New
York for a period of six consecutive months prior to June
2015, so as to establish this state as his home state
(see Domestic Relations Law § 75-a) for
purposes of Domestic Relation Law § 76(1)(a).
Accordingly, the matter must be remitted to the Family Court,
Kings County, for further proceedings to determine whether
the Family Court had jurisdiction to modify the Pennsylvania
to the father's contention, registration of the
Pennsylvania custody order in New York pursuant to Domestic
Relations Law § 77-d was not sufficient to confer
exclusive, continuing jurisdiction over this custody matter
pursuant to Domestic Relations Law § 76-a (see
Schroeder v Schroeder, 658 N.W.2d 909, 912 [Minn Ct
App]; Jamil v Jahan, 280 Mich.App. 92, 102, 760
N.W.2d 266, 272).
light of the foregoing, the attorney for the child's
alternative contention that New Jersey would be a more
convenient forum (see ...