In the Matter of KORISA DD. et al., on Behalf of MORGAN DD., Respondents,
MICHELLE EE. et al., Appellants.
Calendar Date: November 14, 2017
Pomeroy, Armstrong, Casullo & Monty, LLP, Cortland
(William J. Pomeroy of counsel), for appellants.
Walsh Law Firm, PC, Cortland (Ronald T. Walsh of counsel),
A. Schaeber, Liverpool, attorney for the child.
Francis Williams, Cortland, attorney for the child.
Before: Garry, J.P., Lynch, Clark, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
by permission, from an order of the Family Court of Cortland
County (Campbell, J.), entered October 6, 2015, which, in a
proceeding pursuant to Family Ct Act article 6, denied
respondents' motion to dismiss the petition.
entering into an "Embryo Donation Agreement, "
petitioner Korisa DD. gave birth to a son in 2006
(hereinafter the older child) through in vitro fertilization,
utilizing ova donated by respondent Michelle EE. and sperm
donated by petitioner Wayne DD., Korisa DD.'s husband.
Through the same fertilization process, Michelle EE. gave
birth to a son in 2007 (hereinafter the younger child), who
is the genetic sibling of the older child. Petitioners
maintain that the two children are aware of the genetic
relationship, referring to each other as "bro, "
and have developed a close familial relationship. Pursuant to
a May 2014 consent order issued in a separate Family Court
proceeding, Michelle EE. was permitted to relocate to
Kentucky with the younger child. Further, Michelle EE. and
her then spouse, respondent Michael FF., agreed that they
would have joint custody of the younger child, with Michael
FF. having defined parenting time in New York during school
breaks and over the summer . Michelle EE. moved to
Kentucky with the younger child in June 2014.
2015, petitioners commenced this proceeding on behalf of
their son seeking sibling visitation pursuant to Family Ct
Act § 651 (b). Michelle EE. moved to dismiss the
petition for lack of subject matter jurisdiction, contending
that, under the Uniform Child Custody Jurisdiction
Enforcement Act (see Domestic Relations Law art 5-A
[hereinafter UCCJEA]), New York is no longer the "home
state" of the younger child (Domestic Relations Law
§ 75-a ) because the younger child has lived in
Kentucky since June 2014. Family Court denied the motion,
finding that it had subject matter jurisdiction pursuant to
Family Ct Act § 651 (b). This appeal ensued, upon
permission of the Court, and we affirm.
the UCCJEA, a court of this state has jurisdiction to make an
initial child custody determination only if, as pertinent
here, New York is the child's home state (see
Domestic Relations Law § 76  [a]). An initial
determination "means the first child custody
determination concerning a particular child" (Domestic
Relations Law § 75-a ), which includes a visitation
order (see Domestic Relations Law § 75-a ).
We recognize that the younger child has resided in Kentucky
for more than six months, making that state his home state
under the UCCJEA (see Domestic Relations Law §
75-a ). As noted by Family Court, however, simply focusing
on the home state of one child would effectively deprive each
state of initial jurisdiction in this matter. The operative
distinction here is that the issue of visitation concerns
both children, and New York is unquestionably the home state
of the older child. Moreover, Family Court has retained
continuing jurisdiction over the younger child through the
consent order providing respondents with joint custody of the
younger child, who has had significant contacts with New York
(see Domestic Relations Law § 76-a  [a]).
Although not determinative, it is important to recognize that
the Embryo Donation Agreement included a "Choice of Law
and Jurisdiction" provision specifying that the
agreement "shall be governed by, construed and enforced
in accordance with the laws of the State of New York"
(see Matter of Eldad LL. v Dannai MM., ___ A.D.3d
___, ___, 2017 NY Slip Op 08221, *2 ). In this context,
we conclude that Family Court properly retained jurisdiction
over the petition.
otherwise would compromise each child's statutory right
to sibling visitation. Specifically, "[w]here
circumstances show that conditions exist which equity would
see fit to intervene, a brother or sister or, if he or she be
a minor, a proper person on his or her behalf of a child...,
may apply to... [F]amily [C]ourt pursuant to [Family Ct Act
§ 651 (b)][, ] and... the court, by order, after due
notice to the parent... having the care, custody, and control
of such child, ... may make such directions as the best
interest of the child may require, for visitation rights for
such brother or sister in respect to such child"
(Domestic Relations Law § 71). "When initiated
in... [F]amily [C]ourt, the... court has jurisdiction to
determine, in accordance with [Domestic Relations Law §
240 (1)] and with the same powers possessed by... [S]upreme
[C]ourt in addition to its own powers, habeas corpus
proceedings and proceedings brought by petition and order to
show cause, for the determination of the... visitation of
minors" (Family Ct Act § 651 [b]). The petition to
establish visitation between these two children falls
squarely within the embrace of these statutory provisions.
J.P., Clark, Aarons and ...