Calendar Date: June 5, 2017
L. Salazar, East Greenbush for appellant.
Natanya E. DeWeese, Ithaca, for respondent.
Before: Egan Jr., J.P., Lynch, Devine, Clark and Aarons, JJ.
MEMORANDUM AND ORDER
from an order of the Family Court of Broome County
(Connerton, J.), entered January 20, 2016, which, in two
proceedings pursuant to Family Ct Act articles 6 and 8, among
other things, granted respondent's motion to dismiss the
(hereinafter the mother) and respondent (hereinafter the
father) are the parents of a son who was born in New York in
June 2015. Approximately three weeks after the child's
birth, the parties moved to Florida. On August 18, 2015, the
father commenced a proceeding in Florida seeking custody
and/or visitation with the child. On August 19, 2015, the
Florida court issued a temporary injunction prohibiting the
mother from leaving the state. The mother, however, had
returned to New York on August 18, 2015 with the child
because of an alleged incident of domestic violence.
August 27, 2015, the mother commenced these proceedings by
filing a family offense petition  and a custody petition.
Family Court, on September 1, 2015, granted the mother
temporary custody of the child and issued a temporary order
of protection against the father. Meanwhile, on September 2,
2015, the Florida court issued an order directing the mother
to return to Florida with the child. The father answered the
mother's petitions and filed three separate petitions in
New York: a petition to modify Family Court's September
1, 2015 order; a petition to register the September 2, 2015
injunction issued by the Florida court; and a petition to
enforce the September 2, 2015 injunction. The father also
moved to dismiss the mother's petitions.
Court and the Florida court held two telephone conferences
with the parties to determine which court had jurisdiction.
The courts, however, were unable to resolve the
jurisdictional issue. In November 2015, the Florida court
issued an order exercising jurisdiction over the matter. In
January 2016, Family Court granted the father's motion.
The mother appeals.
Uniform Child Custody Jurisdiction and Enforcement Act, which
is codified within Domestic Relations Law article 5-a,
delineates when a New York court may exercise jurisdiction
over child custody proceedings. Under this Act, a New York
court may exert jurisdiction if it is the child's home
state (see Domestic Relations Law § 76 
[a]). Where, as here, the child is less than six months old,
the home state is "the state in which the child lived
from birth" with a parent or a person acting as a parent
(Domestic Relations Law § 75-a ; see Matter of
Milani X. [Katie Y.], 149 A.D.3d 1225, 1226 ).
without deciding, that the mother is correct that New York is
the home state of the child because that was where he lived
"from birth" (Domestic Relations Law § 75-a
) or that the parties' time in Florida was a temporary
absence from New York, we nonetheless conclude that Family
Court properly declined jurisdiction. In this regard, a New
York court that has jurisdiction may still "decline to
exercise its jurisdiction at any time if it determines that
it is an inconvenient forum under the circumstances and that
a court of another state is a more appropriate forum"
(Domestic Relations Law § 76-f ; see Matter of
Frank MM. v Lorain NN., 103 A.D.3d 951, 952 ).
Such factors for the court's consideration include
"whether domestic violence is an issue, the length of
time the children have resided out of the state, the nature
and location of the evidence needed to resolve the
litigation, the ability of each state to resolve the matter
expeditiously and the familiarity of the court of each state
with the facts and issues" (Matter of Eisner v
Eisner, 44 A.D.3d 1111, 1113 , lv denied
9 N.Y.3d 816');">9 N.Y.3d 816 ; see Domestic Relations Law
§ 76-f  [a]-[h]).
outset, we note that Family Court declined jurisdiction on
the basis that Florida was the home state, as opposed to
finding that Florida was the more convenient forum.
Nevertheless, it appears that Family Court based its
determination on the statutory factors used to determine
whether a forum is inconvenient (see Domestic
Relations Law § 76-f  [a]-[h]; Matter of Luis
F.F. v Jessica G., 127 A.D.3d 496, 497 ).
Moreover, Family Court directed the parties to submit papers
as to "why they think [New York] is a better venue than
Florida or why they think it's a worse venue."
Inasmuch as the parties submitted proof and arguments
regarding the inconvenient forum issue and the record is
sufficient for us to make such determination, remittal is not
necessary (see Matter of Luis F.F. v Jessica G., 127
A.D.3d at 497; Matter of Jenkins v Jenkins, 9 A.D.3d
633, 635 , lvs dismissed 5 N.Y.3d 881');">5 N.Y.3d 881 ,
6 N.Y.3d 751');">6 N.Y.3d 751 ; Matter of Jun Cao v Ping Zhao,
2 A.D.3d 1203, 1204 , lv denied 1 N.Y.3d 509');">1 N.Y.3d 509
review of the record discloses that Florida is the more
convenient forum. Notwithstanding the child's tender age
at the time the proceedings were commenced, the child has
lived a majority of his life in Florida. The alleged domestic
abuse took place in Florida and was investigated in Florida.
Furthermore, during one of the telephone conferences between
the two courts, the Florida court stated that the Florida
Department of Children and Families was investigating a
matter involving the mother and that testimony was given by a
caseworker. As noted in its November 2015 order, the Florida
court already conducted a hearing and made findings regarding
the credibility of the witnesses who had testified. In view
of the foregoing, we find that the record supports the
conclusion that Florida is the more convenient forum (see
Matter of Joy v Kutzuk, 99 A.D.3d 1049, 1051 ,
lv denied20 N.Y.3d 856');">20 N.Y.3d 856 ...