Opinion
NA-07537/20
02-01-2021
In the MATTER OF SAIDA A. A Child Under Eighteen Years of Age Alleged to be Abused by C.A. and D.S., Respondents.
JoAnna Kelly, Esq., of Counsel to The NYC Administration for Children's Services, Family Court Legal Services, 150 William Street, 5th Floor, New York, NY 10038, Elliot Green, Esq., 32 Court Street, Suite 404, Brooklyn, NY 11201, Attorney for Respondent Father Fariah Amin, Esq., 34-18 Northern Blvd., Suite 5-37, Long Island City, NY 11101, Attorney for Respondent Mother Charles J. Gaynor, Esq., Ehrlich/Gayner, LLP, 150 Broadway, Suite 909, New York, NY 10038, (Former Attorney for Respondent Mother on the Motion) Amanda P. Slater, Esq., Lawyers for Children, Inc., 110 Lafayette Street, 8th Floor New York, NY 10013, Attorney for the Subject Child
JoAnna Kelly, Esq., of Counsel to The NYC Administration for Children's Services, Family Court Legal Services, 150 William Street, 5th Floor, New York, NY 10038, Elliot Green, Esq., 32 Court Street, Suite 404, Brooklyn, NY 11201, Attorney for Respondent Father
Fariah Amin, Esq., 34-18 Northern Blvd., Suite 5-37, Long Island City, NY 11101, Attorney for Respondent Mother
Charles J. Gaynor, Esq., Ehrlich/Gayner, LLP, 150 Broadway, Suite 909, New York, NY 10038, (Former Attorney for Respondent Mother on the Motion)
Amanda P. Slater, Esq., Lawyers for Children, Inc., 110 Lafayette Street, 8th Floor New York, NY 10013, Attorney for the Subject Child
Carol Goldstein, J. On June 26, 2020, the U.S. State Department repatriated the subject child, Saida A., a then sixteen year-old girl, to the United States from Pakistan because of grave concerns that she was being brutally beaten and coerced into an arranged marriage. Saida, a United States citizen, had lived in New York prior to being taken by respondent father to Pakistan on July 29, 2019, for what was to be a brief vacation, and then left in Pakistan in the care of respondent mother. Upon being returned to New York by the State Department almost a year later, Saida was immediately placed in the care of the New York City Administration for Children's Services ("ACS") and, on September 29, 2020, an abuse petition was filed against her parents.
On November 2, 2020, the father filed the instant motion, joined by the mother, for dismissal of the abuse petition on the grounds that New York lacks jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). The parents claimed that New York lacks home state jurisdiction because Pakistan is treated as a state under the UCCJEA and Saida was in Pakistan, not New York, during much of the six-month period immediately prior to the commencement of the child abuse proceeding (see Domestic Relations Law ["DRL"] §§ 75-d[1] & 76[1] [a] ). The court denies the motion to dismiss. New York has home state jurisdiction under the UCCJEA because the time Saida spent in Pakistan constituted a temporary absence from New York State and, as such, pursuant to DRL § 75-a (7), did not interrupt the six-month period prior to the commencement of the proceeding which established home state jurisdiction. The temporary nature of Saida's stay in Pakistan was established by the father's own statements to ACS at a child safety conference that he brought Saida to Pakistan merely for a vacation. According to the father, the return trip to New York was delayed due to the Saida's medical issues, which required hospitalization, and then was further delayed due to Covid-19 travel restrictions. As proof of his intention to return Saida to New York, the father presented ACS with unused travel confirmations for return flights from Pakistan to New York for Saida on four different dates between August 11, 2019 and June 27, 2020.
Even if New York was not the Saida's home state at the time the abuse petition was filed, based upon the allegations in the petition, Saida is in real and immediate danger from her parents and other relatives and the court can properly take temporary emergency jurisdiction under DRL § 76-c.
Background
On September 29, 2020, ACS filed an abuse petition against the mother C.A. and the father D.S. alleging that they abused the then sixteen year-old subject child Saida A. At the time the petition was filed, the father was living in New York State and the mother was living in Pakistan. The petition contained the following allegations:
Saida had lived in the Unites States since she was four years old and is a United States citizen. In July 2019, the father took Saida from New York to Pakistan, for what was supposed to be a two-week vacation. The father returned to the United States in August 2019, leaving Saida in Pakistan in the care of her mother. When he left Pakistan, the father took Saida's travel documents and her cell phone away from her. The parents’ plan was for Saida to enter into a planned marriage in Pakistan before she turned eighteen years old because once Saida turned eighteen, her parents would have no control over her. ACS alleged that Saida was being forced to enter this marriage against her will.
While in Pakistan, from approximately October 2019 through March 2020, Saida suffered serious physical abuse almost daily at the hands of her uncle, in whose home Saida and respondent mother were staying. The uncle regularly hit and punched Saida in and about her head. After one attack, blood gushed from Saida's head, requiring Saida to be hospitalized and leaving Saida with persisting vision problems in her left eye. On another occasion, Saida suffered a "busted lip". When the abuse started, Saida thought that her uncle "was going to kill" her and she called the police. Unfortunately, when the police arrived, they determined that it was a "family matter" and left without taking any action.
Staying in the same home as Saida and her uncle, the mother was well aware of the abuse and did nothing to stop it. The father, although he was in New York at the time, was also aware of the abuse and likewise took no action. Saida told her father multiple times on the telephone about being assaulted by her uncle and, although the father stopped speaking to Saida directly after he learned that she had called the police, the mother called the father daily to inform him of all matters regarding Saida. Saida stated that while she was staying with her mother and her uncle, she was not permitted to leave the home without being accompanied by one of them.
On or about June 26, 2020, with the assistance of the State Department, Saida was repatriated to the United States and immediately placed in the care of ACS. Saida told Child Protective Specialist ("CPS") Nicole Ramirez that she believed her life would be at risk if either her parents, any of her five brothers, or any relative were to find out where she was. Saida further told CPS Ramirez that she feared returning to Pakistan because she "dishonored her family" by not agreeing to enter into a "forced marriage." Saida was evaluated by a psychiatrist, Dr. Flora Morente, who diagnosed Saida as suffering from post-traumatic stress disorder and depression. Saida told Dr. Morente that she suffers daily flashbacks and has frequent nightmares.
At the initial appearance in family court on September 29, 2020, Saida was remanded to the care and custody of ACS. Based upon the allegations in the petition, the court determined that Saida would be at imminent risk of harm if returned to the care of her parents. At the same time, the court issued temporary orders of protection against Saida's parents directing that they stay away from Saida. The court also directed that ACS keep Saida's whereabouts confidential and that Saida's other relatives have no contact with her and that they do not participate in any ACS conferences regarding Saida. Finally, the court issued a confidentiality order directing that that no medical provider, hospital, services provider or the NYC Department of Education disclose any information pertaining to Saida to anyone except ACS, the foster care agency, or the attorney for the child ("AFC"). The AFC told the court that Saida is "absolutely adamantly opposed to contact with any family member" and that she believes that "if her family finds her, they will send her back to Pakistan and kill her." Neither the mother nor the father requested a hearing pursuant to FCA § 1028 for the return of Saida to the care of a parent.
Saida was initially remanded to ACS on July 8, 2020, on a destitute child petition. ACS withdrew that petition on September 29, 2020.
On the date of the initial appearance, the father was living in New York State and respondent mother was living in Pakistan. However, in or about November 2020, the mother returned the United States and has been residing with the father in New York State.
Motion to Dismiss
On November 2, 2020, respondent father filed the instant motion to dismiss the abuse petition alleging that this court lacks jurisdiction under the UCCJEA to make a custodial determination and that any need for the court to take temporary emergency jurisdiction has ended.
The father claimed that New York did not have jurisdiction under DRL § 76 -1(a) because New York was not Saida's home state. According to DRL § 75-a(7), "home state means 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 the child custody proceeding," and Saida had not resided in New York State for the six months immediately prior to September 29, 2020, the date the instant abuse petition was filed. The father further argued that Pakistan should be treated as a state for the purpose of a jurisdictional analysis under the UCCJEA, citing DRL § 75-d(1) which provides that a "court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying" the UCCJEA.
With respect to the court taking temporary emergency jurisdiction under DRL § 76-c, the father asserted that even if the allegations in the petition established that there had been an emergency when the petition was filed, the emergency was "resolved" with the issuance of the temporary orders of protection. Thus, according to the father, New York should now relinquish jurisdiction and Saida should be transferred to the care of a social welfare agency in Pakistan. Notably, the father did not allege that any court or agency in Pakistan was contacted or that Pakistan agreed to take jurisdiction over this matter. On November 10, 2020, respondent mother filed an affirmation in support of the father's motion to dismiss, adopting the arguments of the father. Additionally, the mother argued that the court should not take emergency jurisdiction because the allegations in the petition "do not present any evidence of imminent danger" to Saida.
The mother further claimed that the abuse petition failed to state a cause of action because "the case records are replete with statements from the foster mother regarding the child's upkeep and [her] desires to have the finer things in life that [had been] provided by her parents." The mother claimed that these were "[n]ot the typical characteristics of an abused child."
A motion for dismissal for failing to state a cause of action is a different ground for dismissal than the grounds raised by the father. As such, it would require a separate notice of motion by the mother. Since the mother did not file a notice of motion, the court need not consider this ground for dismissal. Nonetheless, the court has reviewed the abuse petition and finds it to be legally sufficient.
On November 20, 2020, ACS filed an affirmation in opposition to the father's motion to dismiss the abuse petition under the UCCJEA. ACS argued that New York is Saida's home state. Although Saida was in Pakistan from July 28, 2019 until the end of June 2020, this was always intended to be a temporary stay and DRL § 75-a (7) provides that "a temporary physical absence from the home state is considered part of the period [that a child is] deemed to be residing in the home state."
ACS gives July 28, 2019 as the date that the father took Saida to Pakistan, while the AFC gives the date of July 29, 2019.
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ACS's contention that Saida's time in Pakistan constituted a temporary absence from New York was based primarily upon the father's own statements. At a child safety conference, the father informed CPS Ramirez that when he left Saida in Pakistan, it was his intention that Saida and her mother would return to New York after a brief vacation. However, the return to New York was delayed because Saida became ill with hepatitis and typhoid and required hospitalization. After Saida recovered, the return to New York was further delayed due to Covid-19 pandemic travel restrictions. To support his statements, the father provided ACS with four airline confirmations for Saida and her mother for travel from Pakistan to New York, on the following dates: August 11, 2019, September 6, 2019, January 18, 2020, and June 27, 2020. Copies of these travel confirmations, which were unused, were annexed to ACS's response papers as exhibits.
In further support of its argument that Saida's stay in Pakistan was temporary, ACS asserted that the last time Saida was enrolled in full-time education was before her trip to Pakistan, when she attended ninth grade at a New York high school. Saida was never "unenrolled" in this school. While Saida was enrolled in two part-time educational programs in Pakistan, according to Saida, she was never permitted to attend either of those programs.
ACS further argued that if the court does not find that New York has home state jurisdiction, "at a minimum," it has temporary emergency jurisdiction since Saida is at risk of physical and emotional harm if she is returned to Pakistan. Indeed, Saida told her caseworker and her psychiatrist that she is "petrified" that she will be killed if she is returned to her parents or other relatives. DRL § 76-c(1) provides that the court may take temporary emergency jurisdiction if the child is present in the state and it is necessary to protect the child. ACS noted that the court had already found that Saida would be at imminent risk of harm if returned to her parents and for this reason, it remanded Saida to ACS, issued full stay away orders of protection against her parents, directed that ACS not divulge Saida's whereabouts, and issued a confidentiality order. ACS pointed out the fallacy in the father's argument that the court should now relinquish emergency jurisdiction because the temporary orders of protection are sufficient to protect Saida. If the court relinquishes jurisdiction, the abuse petition will be dismissed, and the temporary orders of protection will automatically terminate.
On November 20, 2020, the AFC filed an affirmation in opposition to the father's motion to dismiss. First, the AFC argued that the UCCJEA need not apply because pursuant to DRL § 75-d(3), "[a] court of this state need not apply [the UCCJEA] if the child custody law of a foreign country as written or as applied violates fundamental principles of human rights" and, according to the AFC, Pakistani law violates these fundamental principles. In support of this position, the AFC cited the 2019 U.S. State Department reports finding that child abuse is widespread in Pakistan and child marriages occurred despite legal prohibitions (U.S. Dept. of State, 2019 Country Reports on Human Rights Practices: Pakistan , Section 6 : Discrimination, Societal Abuses and Trafficking in Persons , "Children," last accessed January 31, 2021 at https://www.state.gov/reports/2019-country-reports-on-human-rights-practices/pakistan/). Moreover, the report found that "[w]omen were victims of various societal violence and abuse, including so-called honor killings, forced marriages and conversions, imposed isolation and used as chattel to settle tribal disputes" (id., Section 6 : Discrimination, Societal Abuses and Trafficking in Persons , "Women" ). These concerns regarding the treatment of women and children in Pakistan were echoed in the Human Rights Watch (Human Rights Watch , Pakistan Country Page , last accessed on January 31, 2021 at https://www.hrw.org/asia/pakistan); Amnesty International (Pakistan 2019, Annual Report , last accessed on January 31, 2021 at https://www.amnesty.org/en/countries/asia-and-the-pacific/pakistan/report-pakistan /) and in the most recent report of the Human Rights Commission of Pakistan (State of Human Rights in 2018, pp. 172 & 188, last accessed on January 31, 2021 at http://hrcp-web.org/hrcpweb/wp-content/uploads/2019/04/State-of-Human-Rights-in-2018-English-1.pdf).
Alternatively, the AFC argued that if this court finds that the UCCJEA applies, New York has jurisdiction under DRL § 76(1)(a) because it is Saida's home state. The AFC agreed with ACS that pursuant to DRL § 75-a(7), Saida's absence from New York State for several months was a temporary absence which would be part of the six-month period immediately prior to the commencement of a custody proceeding. The AFC noted that Saida had been living in the United States since on or before 2009 and had been living in New York State since on or before 2018. The family home, where both parents are currently residing, is in New York State. Moreover, the father told CPS Ramirez that he planned to take Saida to Pakistan only for a short vacation, but that illness and Covid-19 travel restrictions delayed Saida's return to New York.
The AFC further agreed with ACS that if this court does not find that New York has home state jurisdiction, it is authorized to take temporary emergency jurisdiction under DRL § 76-c(1) to protect Saida from imminent harm. The AFC emphasized that the State Department made its own determination that Saida was at imminent risk of harm if she remained in Pakistan and thus repatriated her to the United States and immediately placed her in the care of ACS. A finding that Saida is at imminent risk in Pakistan or in her parent's care in the United States is supported by allegations that Saida was subjected to almost daily beatings inflicted by her uncle while in Pakistan and that neither parent protected Saida from this severe abuse. Saida still suffers from the residual effects of this abuse, in the form of headaches and visions problems. Moreover, Saida has been diagnosed with post-traumatic stress disorder, resulting in symptoms of trauma, including cold sweats, insomnia, anxiety, vivid nightmares, and lack of appetite. If Saida is returned to Pakistan she faces not only a repeat of the abuse, but also the prospect of a forced marriage. Saida's experience with the police in Pakistan further demonstrates that she cannot be protected in that country. 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] ).
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. The father contends that the assertion that Saida was in Pakistan on a "mere vacation is disingenuous" and is not "supported by an affidavit by anyone with personal knowledge." However, the court notes that the assertion by ACS and the AFC is based upon the father's own statements to CPS Ramirez that he took Saida on a vacation to Pakistan and the delay in her return was due to medical issues and Covid-19 travel restrictions. It is further based upon the multiple unused airline confirmations provided by the father to prove this point. Significantly, the father did not deny that he made these statements to CPS Ramirez. Nor did he deny that he provided CPS Ramirez with the copies of four airline confirmations for return flights to New York for Saida and her mother. In support of his position that Saida was not in New York for a mere vacation, the father's attorney alleged that Saida attended school and received medical and orthodontic care while in Pakistan. With respect to the court taking temporary emergency jurisdiction, the father claimed that the court should only take jurisdiction for a limited period of time and that the order of protection can remain in effect until Saida is transferred to the Pakistani authorities.
The court emphasizes that no prior custody order regarding Saida has been issued by any court and that no proceeding of any kind has been commenced in the country of Pakistan regarding Saida's care, custody, and well-being. Moreover, the court has not been advised of the intention of any party to file such action in Pakistan.
Decision on Motion
Initially, this court finds that the UCCJEA applies in the instant case. The UCCJEA's broad definition of child custody proceedings encompasses child protective proceedings (see DRL § 75-a(4) ; Matter of Bridget Y. , 92 A.D.3d 77, 86, 936 N.Y.S.2d 800 ). Moreover, DRL § 75-d(1) provides that "[a] court of this state shall treat a foreign country as if it were a state of the United States" for the purpose of applying the UCCJEA. Thus, Pakistan is treated as a state in determining jurisdiction under the UCCJEA.
The court rejects the argument of the AFC that the UCCJEA is inapplicable because the laws of Pakistan violate fundamental human rights. DRL § 75-d(3) provides that "[a] court of this state need not apply [the UCCJEA] if the child custody law of a foreign country as written or as applied violates fundamental principles of human rights." While the AFC cites respected sources reporting serious societal issues in Pakistan, such as child marriages, forced marriages and "honor" killings, no evidence has been presented that the laws of Pakistan either as written or as applied violate fundamental principles of human rights. For instance, there is no Pakistani law cited that would permit beating a child or forcing a child into marriage or that would sanction an "honor" killing. Nonetheless, the court considers these societal problems to be very serious and they may be relevant to the issue of abuse at the fact-finding hearing and to the issue of best interests at a dispositional hearing.
Applying the UCCJEA, this court finds that New York has jurisdiction over the instant proceeding. Since this is the first custody order entered by any court with respect to Saida, pursuant to DRL § 76(1)(a), New York has jurisdiction to make an initial custody determination under the UCCJEA if "this state is the home state of the child on the date of the commencement of the proceeding." DRL § 75-a (7) defines "home state" as "the state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding" and further provides that a "period of temporary absence of any of the mentioned persons is part of the period."
This court finds that New York was Saida's home state at the commencement of the proceedings. On September 29, 2020, the date the abuse petition was filed, both Saida and her father were residing in New York State, Saida in the care of ACS and her father at his home in New York. Saida's absence from New York from July 28, 2019 through June 26, 2020 was temporary and a temporary absence does not interrupt the six-month period required for establishing home state jurisdiction (see Felty v. Felty , 66 A.D.3d 64, 70, 882 N.Y.S.2d 504 [2nd Dept. 2009] ).
The key factor in determining if a child's absence from the home state should be considered temporary is whether there was an intention by a parent to permanently change the residence of the child. Here, based upon the father's own statements to CPS Ramirez at a child safety conference, there was no intent to permanently change Saida's residence. The father unambiguously stated that he intended the trip to Pakistan to only be a short vacation, which was extended several times due to Saida's health problems and then restrictions on travel due to Covid-19. To support his assertion that Saida's return trip to New York was planned and then delayed, the father provided CPS with copies of return trip (Pakistan to New York) airline confirmations for four different travel dates—August 11, 2019, September 6, 2019, January 18, 2020 and June 27, 2020. These travel confirmations, which were unused, were for Saida and the mother.
Furthermore, the mother, in whose care Saida was left, was not residing in her own home. Rather, Saida and her mother were staying with Saida's uncle. The family home is in New York State, where the parents are currently residing together.
Significantly, Saida's last full-time school attendance was in June 2019, in a high school in New York State. That Saida was registered for some part-time educational programs in Pakistan (although Saida claims that she was never allowed to attend these programs) and had medical treatment and orthodontic care in Pakistan, does not make Saida's residence in Pakistan permanent, rather than temporary, as the father suggest in his reply papers.
Moreover, if Saida's parents did not permit her to return to New York because they were forcing her into an arranged marriage in Pakistan, as was alleged in the abuse petition, this would be a wrongful retention of Saida in Pakistan. Pursuant to caselaw, the period of time that a child is wrongfully removed from New York or wrongfully prevented from returning to New York, constitutes a temporary absence under DRL § 75-a (7) and New York remains child's home state (see Deanv. Sherron , 167 A.D.3d 1521, 91 N.Y.S.3d 639 [4th Dept. 2018] ; Padmo v. Kayef , 134 A.D.3d 942, 943, 21 N.Y.S.3d 336 [2nd Dept. 2015] ; Clouse v. Clouse , 110 A.D.3d 1181, 1182, 973 N.Y.S.2d 409 [3rd Dept. 2013] ; Joy v. Kutzuk , 99 A.D.3d 1049, 1050, 952 N.Y.S.2d 644 [3rd Dept. 2012]lv denied 20 N.Y.3d 856, 2013 WL 105460 [2013] ; Felty v. Felty , at 71, 882 N.Y.S.2d 504 ).
Both ACS and the AFC have argued that if the court does not have jurisdiction under DRL § 76(1)(2), it is nonetheless authorized to take temporary emergency jurisdiction. The court agrees. DRL § 76-c (1) provides: "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" (see also Matter of Bridget Y. , 92 A.D.3d 77, 936 N.Y.S.2d 800 [court may take temporary emergency jurisdiction if child is present in state and it is necessary in an emergency to protect child]).
Saida is present in New York State and the facts as alleged in the petition demonstrate that there is a true emergency and that Saida requires the court's protection. Saida had been brutally and repeatedly beaten for failing to acquiesce to an arranged marriage. She was struck about the head, requiring hospitalization and causing headaches and vision loss that persist. While the beatings were carried out by an uncle, they were done with the full knowledge, and presumably the acquiescence, of her parents, who allowed the abuse to continue. Significantly, Saida's attempt to engage law enforcement in Pakistan was to no avail. When called, the police came to the home, but left without taking any action, considering it a family matter. Saida's situation was deemed to be so dire and her danger so grave that she was assisted by the State Department to return to the United States. Thus, the court determined that Saida was at imminent risk of harm if she were to be returned to her parents or if her parents or other relatives even discovered her whereabouts. Moreover, this court's emergency jurisdiction will be ongoing. DRL § 76-c(2) provides that where there is no previous child custody determination and a child custody proceeding has not been commenced in a state having jurisdiction under the UCCJEA, if a child is at imminent risk of harm, an order issued under this section remains in effect until such time as a court that does have jurisdiction "has taken steps to assure the protection of the child."
Here, there has been no previous custody determination and based upon the allegations in the petition, the court determined that Saida was an imminent risk of harm. Moreover, no proceeding has been commenced in Pakistan and Pakistan has taken no steps to assure Saida's safety. Furthermore, it appears unlikely that any proceeding regarding Saida's care and custody will be filed in Pakistan in the future. No party has indicated an intention to file a proceeding in Pakistan and ACS, the petitioner in this case, is a New York City agency and would have no jurisdiction to institute a proceeding in Pakistan. DRL § 76-c(2) further provides that if a child custody proceeding has not been commenced in a court of a state having jurisdiction, "a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child."
As stated above, no custody proceeding has been commenced in Pakistan. Moreover, New York is now indisputably Saida's home state under DRL § 75-a (7) because she has been in New York continuously for more than six months since being repatriated to the United States on June 26, 2020. Thus, any final order of custody, including an order of placement with ACS, which this court may issue in the instant case, will be a "final determination" under the UCCJEA (see Paul v. Paul , 161 A.D.3d 888, 891, 77 N.Y.S.3d 88 [2nd Dept. 2018] [where New York took emergency jurisdiction, court's determination that it had jurisdiction to issue a final order of custody was appropriate since New York had become the child's home state and no custody proceeding had been commenced in another state]).
In sum, the court finds that New York has jurisdiction under the UCCJEA because the time Saida spent in Pakistan during the six month period immediately prior to the filing of the petition constituted merely a temporary absence from New York State under DRL § 75-a (7). Furthermore, even if New York was not Saida's home state when the petition was filed, New York has ongoing temporary emergency jurisdiction under of DRL § 76-c. Accordingly, the motion for dismissal by the father, joined by the mother, is denied.
The above constitutes the decision and order of the court.