Opinion
2011-10-4
In the Matter of Saleem Lazel KNIGHT, respondent,v.Patrice P. MORGAN, appellant.
Steven P. Forbes, Jamaica, N.Y., for appellant.Frank M. Galchus, Bayside, N.Y., for respondent.Teresita Morales, Jamaica, N.Y., attorney for the child.
Steven P. Forbes, Jamaica, N.Y., for appellant.Frank M. Galchus, Bayside, N.Y., for respondent.Teresita Morales, Jamaica, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, in which the mother cross-petitioned to modify an order of custody dated August 24, 2009, so as to award her sole custody of the subject child, and the father separately cross-petitioned to modify the order of custody so as to award him sole custody of the subject child, the mother appeals from an order of the Family Court, Queens County (Fitzmaurice, J.), dated September 22, 2010, which granted that branch of the father's motion which was to dismiss the mother's cross petition for lack of subject matter jurisdiction.
ORDERED that the order dated September 22, 2010, is reversed, on the law, without costs or disbursements, the mother's cross petition is reinstated, and the matter is remitted to the Family Court, Queens County, for further proceedings on the cross petitions.
On August 24, 2009, in connection with the father's petition seeking joint custody of the subject child with the mother, the Family Court, Queens County, issued an order of custody on consent, awarding joint legal custody to both parents, with primary residential custody to the father. Accordingly, the subject child, who was born in 2000, and had resided with his mother in New York since his birth, moved to California in September 2009 to live with his father. After moving to California with the father, the child was diagnosed by a psychologist in California with attention deficit hyperactivity disorder, oppositional defiant disorder , post-traumatic stress disorder and, possibly, a bipolar disorder. The child received treatment from healthcare providers in California, and was not permitted to travel until his condition was stabilized. The child has not returned to New York since moving to California.
In December 2009 the mother filed a cross petition in the Family Court, Queens County, to modify the prior order of custody dated August 24, 2009, so as to award her sole custody of the child, in which she alleged, among other things, that the father had falsely accused her of abusing the child. In January 2010 the father separately cross-petitioned to modify the prior custody order so as to award him sole custody of the child. Subsequently, in May 2010, while both cross petitions were pending, the father moved, inter alia, to dismiss the mother's cross petition for lack of subject matter jurisdiction. After a hearing on the issue of jurisdiction, the Family Court granted that branch of the father's motion which was to dismiss the mother's cross petition on that ground. The Family Court did not address the father's separate cross petition. We reverse.
The Family Court correctly determined that it lacked exclusive, continuing jurisdiction pursuant to Domestic Relations Law § 76–a(1), since neither the subject
child nor the father maintained a significant connection with New York, and substantial evidence regarding the child's present and future welfare was no longer available in this State ( see Domestic Relations Law § 76–a[1][a]; Matter of Gulyamova v. Abdullaev, 53 A.D.3d 489, 489–490, 859 N.Y.S.2d 573; see also Matter of Persaud v. Persaud, 293 A.D.2d 480, 740 N.Y.S.2d 115; cf. Matter of Wnorowska v. Wnorowski, 76 A.D.3d 714, 907 N.Y.S.2d 308). However, “[t]he Family Court had jurisdiction to hear the mother's [cross] petition for modification pursuant to Domestic Relations Law § 76–a(2) since it would have had jurisdiction for an initial child custody determination” under Domestic Relations Law § 76(1)(a) ( Matter of Rey v. Spinetta, 8 A.D.3d 393, 394, 777 N.Y.S.2d 746; see Domestic Relations Law § 76–a[2] ). New York was the child's “home state” within the six months immediately preceding the commencement of this proceeding, and the mother continued to reside in this State ( see Domestic Relations Law § 76[1][a]; Matter of Campbell v. Campbell, 12 A.D.3d 669, 669, 785 N.Y.S.2d 510).
Accordingly, the matter must be remitted to the Family Court, Queens County, for further proceedings on the cross petitions.