Opinion
2014-03-5
Amy Van Prooyen GREENFIELD, respondent, v. Van David GREENFIELD, appellant.
Schlissel Ostrow Karabatos, PLLC, Garden City, N.Y. (Stephen W. Schlissel, Jennifer Rosenkrantz, and Hillary Reinharz of counsel), for appellant. Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger LLP, Lake Success, N.Y. (Steven J. Eisman and Michael E. Ratner of counsel), for respondent.
Schlissel Ostrow Karabatos, PLLC, Garden City, N.Y. (Stephen W. Schlissel, Jennifer Rosenkrantz, and Hillary Reinharz of counsel), for appellant. Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger LLP, Lake Success, N.Y. (Steven J. Eisman and Michael E. Ratner of counsel), for respondent.
Chas G. Cancellare, Hauppauge, N.Y., attorney for the child.
PETER B. SKELOS, J.P., PLUMMER E. LOTT, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
In an action for a divorce and ancillary relief, the defendant appeals, by permission, from an order of the Supreme Court, Suffolk County (Bivona, J.), dated August 19, 2013, which, upon finding that the State of California was the more appropriate forum to determine any custody and visitation matters affecting the parties' child, declined to continue to exercise jurisdiction over such matters.
ORDERED that the order is affirmed, without costs or disbursements.
A court of this State which has jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law art. 5–A) may decline to exercise jurisdiction if it finds that New York is an inconvenient forum and that a court of another state is a more appropriate forum ( seeDomestic Relations Law § 76–f[1]; Matter of Hassan v. Silva, 100 A.D.3d 753, 754, 953 N.Y.S.2d 677). The factors to be considered in making this determination include the length of time the subject child has resided outside the state, any agreement between the parties as to which state should assume jurisdiction, the nature and location of the evidence required to resolve the pending litigation, the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence, and the familiarity of the court of each state with the facts and issues in the pending litigation ( seeDomestic Relations Law § 76–f[2]; Matter of Hassan v. Silva, 100 A.D.3d at 754, 953 N.Y.S.2d 677;Matter of Paderno v. Shvetsova, 96 A.D.3d 762, 763, 945 N.Y.S.2d 761). “Particularly relevant to the jurisdictional determination is whether the forum in which the litigation is to proceed has optimum access to relevant evidence” ( Vanneck v. Vanneck, 49 N.Y.2d 602, 610, 427 N.Y.S.2d 735, 404 N.E.2d 1278 [internal cite and quote omitted]; see Matter of Paderno v. Shvetsova, 96 A.D.3d at 763, 945 N.Y.S.2d 761). “Maximum rather than minimum contacts with the State are required” ( Vanneck v. Vanneck, 49 N.Y.2d at 610, 427 N.Y.S.2d 735, 404 N.E.2d 1278;see Matter of Paderno v. Shvetsova, 96 A.D.3d at 763, 945 N.Y.S.2d 761).
Here, the subject child has lived in California since August 2011 with the permission of the defendant, who maintains a residence in Utah. The record provides a substantial basis for the Family Court's finding that the evidence regarding the child's care, well being, and personal relationships is more readily available in California. There is no evidence that the child retained substantial connections with New York or that significant evidence existed in this State. The Superior Court of Napa County, California (hereinafter the California court) is familiar with the family and the pending issues, and that court is willing to exercise jurisdiction. Additionally, an attorney for the child based in the same state as the child can far more effectively communicate with the child than an attorney across the country ( see Matter of Paderno v. Shvetsova, 96 A.D.3d at 763, 945 N.Y.S.2d 761). Although the parties had previously agreed, in August 2011, that New York would retain jurisdiction of custody and visitation matters, such agreement was outweighed by the other relevant factors. Accordingly, the Family Court providently exercised its discretion in concluding that the State of California is the more appropriate and convenient forum to determine the matters of custody and visitation ( seeDomestic Relations Law § 76–f; Matter of Hassan v. Silva, 100 A.D.3d at 754–755, 953 N.Y.S.2d 677;Matter of Paderno v. Shvetsova, 96 A.D.3d at 763–764, 945 N.Y.S.2d 761;Matter of Boyd v. Crepeau, 89 A.D.3d 1020, 1020, 933 N.Y.S.2d 560;Matter of Toale v. Caravella, 86 A.D.3d 576, 576, 926 N.Y.S.2d 832).