Opinion
2012-12-12
In the Matter of Christina E. OZDEMIR, appellant, v. Douglas J. RILEY, respondent.
Lisa Siano, Bellmore, N.Y., for appellant. Gail Jacobs, Great Neck, N.Y., for respondent.
Lisa Siano, Bellmore, N.Y., for appellant. Gail Jacobs, Great Neck, N.Y., for respondent.
David H. Ledgin, Mineola, N.Y., attorney for the children.
In related child custody proceedings pursuant to Family Court Act article 6 and a related family offense proceeding pursuant to Family Court Act article 8, the mother appeals from (1) an order of the Family Court, Nassau County (Stack, J.H.O.), dated December 8, 2011, which granted the father's motion to dismiss her family offense petition, and (2) an order of the same court dated December 12, 2011, which granted the father's motion to dismiss her petition to modify an out-of-state custody order.
ORDERED that the orders are affirmed, without costs or disbursements.
The Family Court properly granted the father's motion to dismiss the mother's petition to modify an out-of-state custody order. The State of Delaware asserted home-state jurisdiction over the custody proceeding commenced there by the father ( seeDomestic Relations Law § 75–a[7]; Matter of Navarrete v. Wyatt, 52 A.D.3d 836, 861 N.Y.S.2d 393). Here, a New York court may not exercise jurisdiction over a custody proceeding involving the parties' children, since the pending Delaware proceeding has not been terminated or stayed by the Delaware courts (Domestic Relations Law § 76–e[1] ). Moreover, Delaware courts have not relinquished jurisdiction over the matter by determining that they no longer have continuing, exclusive jurisdiction, or that New York would be a more convenient forum ( seeDomestic Relations Law § 76–b[1] ). Therefore, the Family Court may not modify the subject Delaware custody order, which has been registered here ( seeDomestic Relations Law § 77–e[2] ). Accordingly, the Family Court properly dismissed the mother's petition to modify the Delaware order.
Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, codified at article 5–A of the Domestic Relations Law, when a child is present in New York, a New York court may exercise temporary emergency jurisdiction to protect a child, sibling, or parent ( seeDomestic Relations Law § 76–c[1] ). Here, however, the mother's allegations in her family offense petition failed to sufficiently allege conduct by the father that would constitute a family offense ( seeFamily Ct. Act §§ 812, 822; Matter of Hearne v. Hearne, 61 A.D.3d 758, 878 N.Y.S.2d 81;Matter of Davis v. Venditto, 45 A.D.3d 837, 838, 846 N.Y.S.2d 365;Matter of Fleet v. Scarola, 221 A.D.2d 339, 633 N.Y.S.2d 362). Therefore, the Family Court properly granted the father's motion to dismiss the mother's family offense petition.