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concluding that there was no need to remit the case to the Family Court for it to consider the statutory inconvenient-forum factors because the record was "sufficient for [the appellate court] to consider and evaluate those factors"
Summary of this case from Hipps v. CabreraOpinion
2014-08-20
In the Matter of Jessica MOJICA, appellant, v. Kaseem DENSON, respondent.
Steven P. Forbes, Jamaica, N.Y., for appellant. Lance K. Dandridge, Jamaica, N.Y., for respondent.
Steven P. Forbes, Jamaica, N.Y., for appellant. Lance K. Dandridge, Jamaica, N.Y., for respondent.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Amy Hausknecht of counsel), attorney for the child.
WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Queens County (Matthews, Ct.Atty.Ref.), dated July 25, 2013, which granted the father's motion to dismiss, for lack of subject matter jurisdiction, her petition to modify an order of custody of the same court dated May 8, 2012, so as to award her sole custody of the parties' child.
ORDERED that the order dated July 25, 2013, is reversed, on the law, without costs or disbursements, the father's motion to dismiss the mother's petition for lack of subject matter jurisdiction is denied, and the matter is remitted to the Family Court, Queens County, for a hearing and a determination thereafter on the mother's petition.
Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, codified in Article 5–A of the Domestic Relations Law (hereinafter UCCJEA), a court in this State that has made an initial custody determination has exclusive continuing jurisdiction over that determination until it finds, as is relevant here, that the child does not have a “significant connection” with New York, and “substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships” (Domestic Relations Law § 76–a[1][a]; see Matter of Wnorowska v. Wnorowski, 76 A.D.3d 714, 907 N.Y.S.2d 308). Here, while the subject child moved to Connecticut to live with her father approximately eight months before the mother petitioned to modify a prior order of custody so as to award her sole custody of the child, the record reveals that the child retained a significant connection to New York, including attending school and having frequent visitation with her mother in New York, and that substantial evidence was available in this state concerning her present and future welfare ( see Matter of Seminara v. Seminara, 111 A.D.3d 949, 976 N.Y.S.2d 121; Matter of Blerim M. v. Racquel M., 41 A.D.3d 306, 311, 839 N.Y.S.2d 57; Bjornson v. Bjornson, 20 A.D.3d 497, 799 N.Y.S.2d 250). The child's significant connection to Connecticut does not diminish her significant connection to New York as well ( see Vernon v. Vernon, 100 N.Y.2d 960, 972, 768 N.Y.S.2d 719, 800 N.E.2d 1085). Accordingly, the Family Court erred in determining that it lacked exclusive, continuing jurisdiction over the matter, and in granting the father's motion to dismiss the petition for lack of subject matter jurisdiction ( seeDomestic Relations Law § 76–a).
After the Family Court improperly determined that it lacked exclusive, continuing jurisdiction over the matter, it, in effect, determined that, even if it had such jurisdiction, it would decline to exercise it. A court of this State that has jurisdiction under the UCCJEA may decline to exercise it if it finds that New York is an inconvenient forum and that a court of another state is a more appropriate forum ( seeDomestic Relations Law § 76–f[1]; Matter of Hassan v. Silva, 100 A.D.3d 753, 953 N.Y.S.2d 677). However, the court is required to consider the factors set forth in Domestic Relations Law § 76–f(2)(a)–(h) before determining that New York is an inconvenient forum ( see Matter of Ferris v. Quinones, 44 A.D.3d 854, 843 N.Y.S.2d 676; Matter of Rey v. Spinetta, 8 A.D.3d 393, 777 N.Y.S.2d 746; Matter of Dawber v. Kelly, 287 A.D.2d 625, 732 N.Y.S.2d 24). The Family Court failed to do so here. However, we need not remit the matter to the Family Court, Queens County, for consideration of the statutory factors because the record is sufficient for this Court to consider and evaluate those factors ( see Matter of Balde v. Barry, 108 A.D.3d 622, 969 N.Y.S.2d 508; Matter of Sutton v. Sutton, 74 A.D.3d 1838, 902 N.Y.S.2d 746; cf. Matter of Ferris v. Quinones, 44 A.D.3d 854, 843 N.Y.S.2d 676). Consideration of the relevant statutory factors, including the nature and location of relevant evidence, and the Family Court's greater familiarity than the courts of Connecticut with the facts and issues underlying the mother's modification petition, supports a conclusion that New York is not an inconvenient forum ( see Matter of Wnorowska v. Wnorowski, 76 A.D.3d 714, 907 N.Y.S.2d 308).
Contrary to the father's remaining contention, asserted as an alternative basis for affirmance ( see generally Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545, 470 N.Y.S.2d 564, 458 N.E.2d 1241), the mother made an evidentiary showing sufficient to warrant a hearing on the petition to modify the prior order of custody ( see Matter of Ross v. Ross, 68 A.D.3d 878, 890 N.Y.S.2d 127; Matter of Gurewich v. Gurewich, 58 A.D.3d 628, 872 N.Y.S.2d 141).