Opinion
2014-09-30
In re JEREMY A., Petitioner–Appellant, v. VIANCA G., Respondent–Respondent.
Geoffrey P. Berman, Larchmont, for appellant.
Reversed and remanded.
Geoffrey P. Berman, Larchmont, for appellant. MAZZARELLI, J.P., ANDRIAS, MOSKOWITZ, MANZANET–DANIELS, CLARK, JJ.
Order, Family Court, Bronx County (Jennifer S. Burtt, Referee), entered on or about September 25, 2013, which granted respondent mother's motion to dismiss petitioner father's visitation petition on forum non conveniens grounds to the extent of staying the father's petition until he either files a new petition for visitation in Florida or files a cross petition in the proceedings filed by the mother that are currently pending in Florida, unanimously reversed, on the law, without costs, the stay lifted, and the matter remanded for further proceedings consistent with this decision. Leave to appeal from the aforementioned order is granted nunc pro tunc.
The order staying the father's petition is not appealable as of right ( see Family Ct. Act § 1112[a]; Matter of Holtzman v. Holtzman, 47 A.D.2d 620, 620–621, 364 N.Y.S.2d 528 [1st Dept.1975] ). However, we exercise our discretion and treat the father's appeal as an application for leave to appeal, and grant the application nunc pro tunc ( see Matter of Brett M.D. v. Elizabeth A.D., 110 A.D.3d 424, 972 N.Y.S.2d 36 [1st Dept.2013] ).
The court improvidently exercised its discretion, as the record indicates that the court failed to consider all relevant factors before making its determination ( see Domestic Relations Law § 76–f[2] ). In particular, there is no indication that the court considered the distance between New York and Florida, the relative financial conditions of the mother and father, any agreement between the parties on jurisdiction, or the nature and location of any evidence required to resolve the “pending litigation” concerning the father's visitation rights ( § 76–f[2][c], [d], [e], [f] ). Accordingly, the matter is remanded so that the parties may present evidence and the court can consider all factors in determining whether New York is an inconvenient forum and whether Florida is a more appropriate forum ( see Domestic Relations Law § 76–f[1], [2]; Matter of Wilson v. Linn, 79 A.D.3d 1767, 914 N.Y.S.2d 923 [4th Dept.2010]; Matter of Blerim M. v. Racquel M., 41 A.D.3d 306, 310–311, 839 N.Y.S.2d 57 [1st Dept.2007] ).