During the pendency of the case, Javonni continued to reside in Florida. All parties acquiesced to this Court's exercise of jurisdiction (see DRL § 76-g (1)(a); cf. Matter of Bridget Y. v Kenneth M.V., 92 A.D.3d 77, 86-87 [4th Dept 2011] [wherein at the commencement of the proceeding in New York, the parents had already commenced a proceeding in New Mexico]). This Court entered temporary orders that provided Respondent-Cousins with reasonable telephone contact and a short visit with Javonni at their expense.
During the pendency of the case, Javonni continued to reside in Florida. All parties acquiesced to this Court's exercise of jurisdiction (see DRL § 76-g (1)(a) ; cf. Matter ofBridget Y. v. Kenneth M.Y., 92 A.D.3d 77, 86-87, 936 N.Y.S.2d 800 [4th Dept. 2011] [wherein at the commencement of the proceeding in New York, the parents had already commenced a proceeding in New Mexico]). This Court entered temporary orders that provided Respondent-Cousins with reasonable telephone contact and a short visit with Javonni at their expense.
When called by Saida, the Pakistani police came to the home, but they left without taking any action, considering it a family matter. The AFC described the danger Saida faces as "real and immediate" citing ( Matter of Bridget Y., 92 A.D.3d 77, 87, 936 N.Y.S.2d 800 [4th Dept. 2011]app. dismissed 19 N.Y.3d 845, 946 N.Y.S.2d 99, 969 N.E.2d 216 [2012] ).
The only basis for exercising emergency jurisdiction exists if the assumption of jurisdiction is necessary to “protect the child.” The Fourth Department has held that the evidence necessary to establish such jurisdiction is an “imminent risk of harm.” N.Y. DRL § 76–c(3); In re Bridget Y., 92 A.D.3d 77, 936 N.Y.S.2d 800 (4th Dep't 2011). The Court noted that the emergency must be real and immediate and of such a nature as to require intervention to protect the child from “imminent physical or emotional danger.”
Under the circumstances of this case, the mother's statutory right to counsel was not violated (see Matter of Darryl B.W. v. Sharon M.W., 49 A.D.3d at 1247, 854 N.Y.S.2d 260 ; Matter of Fralix v. Thornock, 9 A.D.3d at 890, 779 N.Y.S.2d 687 ; see also Matter of Stearns v. Crawford, 112 A.D.3d at 1326, 977 N.Y.S.2d 827 ). Moreover, given the totality of the circumstances, the Supreme Court's initial invocation of emergency jurisdiction pursuant to the UCCJEA was warranted (see Domestic Relations Law § 76–c[1] ; Matter of Christianti G. [Diana S.], 125 A.D.3d 859, 860, 1 N.Y.S.3d 844 ; Matter of Bridget Y. [Kenneth M.Y.], 92 A.D.3d 77, 87, 936 N.Y.S.2d 800 ; Matter of Santiago v. Riley, 79 A.D.3d 1045, 1046, 915 N.Y.S.2d 99 ). The father's moving papers and testimony established facts supporting his contention that there was " ‘an emergency that [was] real and immediate, and of such a nature as to require [s]tate intervention to protect the child[ren] from imminent physical or emotional danger’ " ( Matter of Bridget Y. [Kenneth M.Y.], 92 A.D.3d at 87, 936 N.Y.S.2d 800, quoting Matter of Severio P. v. Donald Y., 128 Misc.2d 539, 542, 490 N.Y.S.2d 439 [Fam.
Andrew t. radack, attorney for the Children, Silver Creek, for Kelly Y. and Colleen Y.Michael J. Sullivan, Attorney for the Children, Fredonia, for Bridget Y. and Michaela Y. Same Opinion by Peradotto, J., as in Matter of Bridget Y. [Appeal No. 1], ––– A.D.3d ––––, 936 N.Y.S.2d 800, 2011 WL 6848352 [Dec. 30, 2011]. Fahey and Sconiers, JJ., concur with Peradotto, J.; Smith, J.P., dissents in part and votes to reverse in accordance with the same dissenting Opinion as in Matter of Bridget Y. [Appeal No. 1], ––– A.D.3d ––––, 936 N.Y.S.2d 800, 2011 WL 6848352 [Dec. 30, 2011], in which Lindley, J., concurs.
When called by Saida, the Pakistani police came to the home, but they left without taking any action, considering it a family matter. The AFC described the danger Saida faces as "real and immediate" citing Matter of Bridget Y. (92 AD3d 77, 87 [4th Dept. 2011] app. dismissed 19 NY3d 845 [2012]). In a reply dated November 30, 2020, the father disputes the claim by ACS and the AFC that New York is Saida's home state.
. Reported below, 92 A.D.3d 77, 936 N.Y.S.2d 800.
"A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child, a sibling or parent of the child" ( Domestic Relations Law § 76–c[1] ). For a New York court to exercise temporary emergency jurisdiction, " ‘the mere physical presence of the child[ren] in this [s]tate is not a sufficient basis per se for the exercise of jurisdiction ... There must, in addition, be an emergency that is real and immediate, and of such a nature as to require [s]tate intervention to protect the child[ren] from imminent physical or emotional danger’ " ( Matter of Bridget Y. [Kenneth M.Y.] , 92 A.D.3d 77, 87, 936 N.Y.S.2d 800, quoting Matter of Severio P. v. Donald Y. , 128 Misc.2d 539, 542, 490 N.Y.S.2d 439 ; see Matter ofMichael P. v. Diana G. , 156 A.D.2d 59, 66, 553 N.Y.S.2d 689 ). Here, in the absence of such emergency, the Family Court could not invoke its emergency jurisdiction (see Matter ofFrancois B. v. Fatoumata L. , 170 A.D.3d 617, 618, 97 N.Y.S.3d 83 ; Matter ofD'Addio v. Marx , 288 A.D.2d 218, 219, 732 N.Y.S.2d 573 ; Matter of Hernandez v. Collura , 113 A.D.2d 750, 752, 493 N.Y.S.2d 343 ).
Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Domestic Relations Law art 5–A), a New York court has jurisdiction to make an initial child custody determination under very limited circumstances, none of which apply here (see § 76[1][a]-[d] ). Nevertheless, section 76–c states in relevant part that New York courts have "temporary emergency jurisdiction if the child is present in this state and ... it is necessary in an emergency to protect the child, a sibling or parent of the child" (§ 76–c [1] ). Contrary to the father's contention, the court properly determined that it had temporary emergency jurisdiction over both proceedings. Inasmuch as it is undisputed that the child was present in New York State when the mother filed the petitions and both proceedings fit within the UCCJEA's broad definition of child custody proceedings (see § 75–a [4]; see generallyMatter of Bridget Y. [Kenneth M.Y.], 92 A.D.3d 77, 86, 936 N.Y.S.2d 800 [4th Dept. 2011], appeal dismissed 19 N.Y.3d 845, 946 N.Y.S.2d 99, 969 N.E.2d 216 [2012] ), the only real issue is whether there was an emergency within the meaning of section 76–c (1).As the mother correctly contends, Domestic Relations Law § 76–c (1) applies to emergencies involving parents.