In the Matter of Alyssa T. Defrank, appellant,
Kyle C. Wolf, respondent.
J. Lewisohn, Woodmere, NY, for appellant.
Rosaline Asonye, Freeport, NY, attorney for the child.
C. DILLON, J.P. RUTH C. BALKIN FRANCESCA E. CONNOLLY ANGELA
G. IANNACCI, JJ.
DECISION & ORDER
proceeding pursuant to Family Court Act article 6, the mother
appeals from an order of the Family Court, Nassau County
(Eileen C. Daly-Sapraicone, J.), dated March 11, 2019. The
order dismissed, for lack of subject matter jurisdiction, the
mother's petition for custody of the parties' child.
that the order is reversed, on the law, without costs or
disbursements, the petition is reinstated, and the matter is
remitted to the Family Court, Nassau County, for further
proceedings on the petition.
parties are the parents of one child, born in 2015. For the
first two years of his life, the child lived with his parents
in Pennsylvania. However, in November 2017, the child began
residing with his maternal great grandmother in New York. The
mother moved to New York to live with the child and the
maternal great grandmother in January 2018.
27, 2018, the mother filed the instant petition in the Family
Court, Nassau County, for custody of the child. The father
subsequently filed a custody petition in Pennsylvania. The
Family Court thereafter held a hearing to determine whether
it had jurisdiction under the Uniform Child Custody
Jurisdiction and Enforcement Act (see Domestic
Relations Law art 5-A). In an order dated March 11, 2019, the
court dismissed the mother's petition for lack of
jurisdiction. The mother appeals.
York has jurisdiction to make an initial child custody
determination 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" (Domestic Relations Law
§ 76[a]). "Home state" is defined as
"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" (Domestic Relations Law § 75-a).
although the child was living in New York for six consecutive
months immediately before this proceeding was commenced, he
was not living with a parent in this state for that time
period, because the mother did not move to New York until
January 2018. Moreover, the maternal great grandmother was
not a "person acting as a parent," as that term is
defined by statute, because she had not been awarded legal
custody of the child by a court and did not claim a right to
legal custody of the child (Domestic Relations Law §
75-a; see Matter of Breselor v Arciniega, 123
A.D.3d 1413, 1415). As such, we agree with the Family
Court's conclusion that New York was not the home state
of the child at the time of the commencement of the
proceeding (see Domestic Relations Law §
75-a; Matter of Intriago v Diaz-Garcia, 147
A.D.3d 1054, 1055).
contrary to the Family Court's determination,
Pennsylvania did not have jurisdiction over the matter.
Pennsylvania also did not qualify as the home state of the
child, since the child had been living in New York for more
than six months prior to the commencement of the proceeding
(see Domestic Relations Law § 76[a];
Matter of Hollander v Weissberg, 147 A.D.3d 831,
833). Thus, the child did not have a home state at the time
of commencement. In such a case, New York may exercise
jurisdiction if "(i) the child... and at least one
parent... have a significant connection with this state other
than mere physical presence; and (ii) substantial evidence is
available in this state concerning the child's care,
protection, training, and personal relationships"
(Domestic Relations Law § 76[b]; see Matter of
Breselor v Arciniega, 123 A.D.3d at 1415; Matter of
Destiny EE. [Karen FF.], 90 A.D.3d 1437).
record demonstrates the child's and the mother's
significant connection with New York, as well as the
availability of substantial evidence in this state, which is
where the child and the mother continue to reside with the
maternal great grandmother, and where the child is enrolled
in school and is seen by a pediatrician (see Matter of
Breselor v Arciniega, 123 A.D.3d at 1415). As such,
pursuant to Domestic Relations Law § 76(1)(b), New York
has jurisdiction to make an initial child custody
determination in this matter.
we reverse the order, reinstate the petition, and remit the
matter to the Family Court, Nassau County, for further
proceedings on the petition.
mother's remaining contentions either are without merit
or need not be ...