Opinion
10-19-2016
In the Matter of Barbara REILLY, et al., appellants, v. Terence MANN, respondent.
Campagna Johnson, P.C., Hauppauge, NY (Bryan R. Johnson of counsel), for appellants. Elayne Kesselman, New York, NY, for respondent.
Campagna Johnson, P.C., Hauppauge, NY (Bryan R. Johnson of counsel), for appellants.
Elayne Kesselman, New York, NY, for respondent.
MARK C. DILLON, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, and COLLEEN D. DUFFY, JJ.
Appeal by the maternal grandparents from an order of the Family Court, Suffolk County (Heather P.S. James, Ct. Atty. Ref.), dated August 3, 2015. The order, without a hearing, granted the father's motion to dismiss the maternal grandparents' petition pursuant to Domestic Relations Law § 72 for grandparent visitation.
ORDERED that the order is affirmed, without costs or disbursements.
In March 2015, the maternal grandparents of the subject child filed a petition pursuant to Domestic Relations Law § 72 seeking visitation with the child, who resides with her father in Connecticut. Thereafter, the father moved to dismiss the petition based on lack of jurisdiction. In an order dated August 3, 2015, the Family Court granted the father's motion to dismiss the petition, without prejudice to the petitioners filing an application for similar relief in Connecticut. The court determined that the child did not reside within New York, and that New York was an inconvenient forum for this matter. We affirm, albeit on a ground different from that relied upon by the Family Court.
As relevant here, Domestic Relations Law § 76 provides that a court of this state has jurisdiction to make an initial child custody determination, inter alia, where “(i) the child and the child's parents, or the child and at least one parent or a person acting as a 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[1][b] ; see Matter of Breselor v. Arciniega, 123 A.D.3d 1413, 1415, 1 N.Y.S.3d 413 ). Here, the record reveals that, since October 2014, the child has resided with her father in Connecticut, where she is enrolled in school and involved in various extracurricular activities. There is no evidence that the child still has a close connection with New York (see Domestic Relations Law § 76[1][b] ), and “jurisdiction to entertain a visitation proceeding cannot be predicated solely upon the mere presence of the petitioner[s] within the State” (Becker v. Toshiko Watanabe, 109 A.D.2d 861, 861, 486 N.Y.S.2d 781 ). Under these circumstances, the father's motion to dismiss the petition pursuant to Domestic Relations Law § 72 was properly granted (see Matter of Hausner v. Giordano, 62 A.D.3d 999, 999, 878 N.Y.S.2d 905 ; Becker v. Toshiko Watanabe, 109 A.D.2d at 861, 486 N.Y.S.2d 781 ; cf. Matter of Breselor v. Arciniega, 123 A.D.3d at 1415–1416, 1 N.Y.S.3d 413 ).
The parties' remaining contentions either are without merit or need not be reached in light of our determination.