Opinion
2014-07-30
In the Matter of Mark WILLIAMS, appellant, v. Marcella DAVIS, respondent.
Michele Marte–Indzonka, Newburgh, N.Y., for appellant. Richard N. Lentino, Middletown, N.Y., for respondent.
Michele Marte–Indzonka, Newburgh, N.Y., for appellant. Richard N. Lentino, Middletown, N.Y., for respondent.
Dawn M. Shammas, Harrison, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Orange County (Woods, J.), dated July 24, 2013, which dismissed the petition on the ground of lack of jurisdiction.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements, the petition is reinstated, and the matter is remitted to the Family Court, Orange County, for further proceedings consistent herewith.
The Family Court improvidently exercised its discretion in summarily determining, without a hearing, that it lacked jurisdiction on the basis that its prior order awarding guardianship of the subject child to the child's maternal aunt was “too old.” In order to determine whether it lacked exclusive, continuing jurisdiction pursuant to Domestic Relations Law § 76–a(1), the Family Court should have given the parties an opportunity to present evidence as to whether the child had maintained a significant connection with New York, and whether substantial evidence was available in New York concerning the child's “care, protection, training, and personal relationships” (Domestic Relations Law § 76–a[1][a]; see Matter of Ramirez v. Gunder, 108 A.D.3d 563, 564, 968 N.Y.S.2d 183;Matter of Elbakri v. Farag, 71 A.D.3d 767, 895 N.Y.S.2d 732;Matter of Greenidge v. Greenidge, 16 A.D.3d 583, 792 N.Y.S.2d 165).
Because the Family Court did not determine whether it had exclusive, continuing jurisdiction pursuant to Domestic Relations Law § 76–a, we remit the matter to the Family Court, Orange County, for a determination of that issue. If, upon remittal, the Family Court determines, upon a complete examination of the evidence submitted, that it retains exclusive and continuing jurisdiction over the custody issues, it may exercise that jurisdiction, or it may decline to do so if it determines, upon consideration of the relevant statutory factors, that New York is an inconvenient forum ( seeDomestic Relations Law § 76–a[1]; Matter of Elbakri v. Farag, 71 A.D.3d 767, 895 N.Y.S.2d 732;Matter of Greenidge v. Greenidge, 16 A.D.3d at 583, 792 N.Y.S.2d 165;Matter of Rey v. Spinetta, 8 A.D.3d 393, 394, 777 N.Y.S.2d 746), or that another statutory basis for declining jurisdiction exists. SKELOS, J.P., HALL, DUFFY and BARROS, JJ., concur.