State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 3, 2015 519137 

_____________________________________

In the Matter of JACK L.

LEWIS JR.,

Appellant,

v

 MEMORANDUM AND ORDER

MICHELLE M. MARTIN,

Respondent.

(And Three Other Related Proceedings.)

______________________________________

Calendar Date: October 13, 2015

Before: Lahtinen, J.P., Garry, Egan Jr. and Clark, JJ.

__________

Joseph Nalli, Fort Plain, for appellant.

Ramos & Ramos, Buffalo (Joshua I. Ramos of counsel), for

respondent.

William J. Mycek, Amsterdam, attorney for the child.

__________

Egan Jr., J.

Appeal from an order of the Family Court of Montgomery

County (Cortese, J.), entered May 22, 2014, which, in four

proceedings pursuant to Family Ct Act article 6, granted

respondent's motion to, among other things, vacate certain prior

orders.

Petitioner (hereinafter the father) and respondent

(hereinafter the mother) were married in the Village of Fort

Plain, Montgomery County in June 2007 and are the parents of a

son (born in 2008). In July 2009, the parties were divorced in
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Florida, where they apparently both resided at that time. As

part of the divorce action, the parties entered into a marital

settlement agreement wherein they agreed that the mother would

have sole legal and physical custody of the child with no

visitation to the father. This settlement agreement was

incorporated into the parties' resulting judgment of divorce, the

latter of which indicated that Florida would "reserve[]

jurisdiction for all legal and proper purposes."

Around the time of the parties' divorce, the father

returned to Fort Plain and, at some point in late 2010, the

mother followed suit – ostensibly to deal with an unrelated

family matter. In August 2012, at which point the mother and the

child were – nearly two years later – still residing in this

state, the father filed a petition in Montgomery County Family

Court asking for visitation with the child. By order entered

March 8, 2013, Family Court granted the father, who had virtually

no prior contact with the child, one hour of supervised

visitation each month. Within a matter of weeks, the father

filed a modification petition seeking to prevent the mother from

being present during such visits. The mother, in turn, filed a

petition in June 2013 requesting, among other things, permission

to relocate with the child to Florida. In response, the father

filed an enforcement petition in August 2013, contending that the

mother was not making the child available for the court-ordered

monthly visitations. At no time during any of these proceedings

– either in their appearances before Family Court or in the

context of the various petitions filed in these matters – did

either party make any mention of the prior award of custody in

Florida.1

In August 2013, the parties appeared before Family Court,

at which time Family Court apparently issued a temporary order

granting the mother sole legal and physical custody of the child

1 At the initial appearance in October 2012, the attorney

for the child did make a passing reference to the fact that the

father may have agreed to no visitation in the context of the

parties' Florida divorce action; no further development or

discussion of this issue appears in the record.
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and permission to relocate to Florida – with the understanding

that the mother would return for a hearing on the pending

petitions. Thereafter, in December 2013, the parties returned to

Family Court and agreed, insofar as is relevant here, that the

mother would have sole legal custody of the child and be

permitted to relocate with the child to Florida; the parties

further agreed that the father would be awarded two weeks of

unsupervised visitation with the child each summer. In January

2014, Family Court reduced the parties' agreement to a written

order.

Having received the very relief she requested from Family

Court, the mother then moved to, among other things, vacate

Family Court's January 2014 order (as well as all prior orders

issued in these proceedings), contending that Family Court lacked

subject matter jurisdiction over the custody and visitation

issues. By order entered May 22, 2014, Family Court, among other

things, granted the mother's application, finding that Florida

had exclusive and continuing jurisdiction over the parties, and

vacated all prior orders issued in connection with these

proceedings. This appeal by the father ensued.2

We reverse. Consistent with the provisions of the Uniform

Child Custody Jurisdiction and Enforcement Act (hereinafter

UCCJEA), which is codified in Domestic Relations Law article 5-A,

"a court of this state may not modify a child custody

determination made by a court of another state unless a court of

this state has jurisdiction to make an initial custody

determination under [Domestic Relations Law § 76 (1) (a) or (b)]"

and, insofar as is relevant here, "[a] court of this state . . .

determines that the child, the child's parents, and any person

acting as a parent do not presently reside in the other state"

2 The father's subsequent application for a stay pending

appeal was denied by a Justice of this Court. Additionally,

although Family Court's order recites the papers considered prior

to ruling upon the mother's motion, the record on appeal does not

appear to contain many of the submissions filed in connection

therewith, including the materials submitted by the father and

the attorney for the child in opposition thereto.
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(Domestic Relations Law § 76-b [2]). As to the first criteria,

jurisdiction to render an initial custody determination may be

predicated upon, among other things, a finding that "this state

is the home state of the child on the date of the commencement of

the proceeding" (Domestic Relations Law § 76 [1] [a]). A child's

home state, in turn, is defined as "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 a

child custody proceeding" (Domestic Relations Law § 75-a [7]; see

Matter of Joy v Kutzuk, 99 AD3d 1049, 1050 [2012], lv denied 20

NY3d 856 [2013]). A child custody proceeding includes a

proceeding in which visitation with the child is at issue (see

Domestic Relations Law § 75-a [4]), and the commencement of a

proceeding "means the filing of the first pleading in a

proceeding" (Domestic Relations Law § 75-a [5]; see Matter of

Andrews v Catanzano, 44 AD3d 1109, 1110 [2007]).

At the time that the father filed his first petition in

August 2012, the mother – by her own admission – had been

residing with the child in this state since late 2010, and she

gave no indication – at that time – that her presence in this

state was temporary (see Matter of Destiny EE. [Karen FF.], 90

AD3d 1437, 1440-1441 [2011], lv dismissed 19 NY3d 856 [2012]). 

As a result, there is no question that New York qualified as the

home state of the child and, therefore, the first criteria of

Domestic Relations Law § 76-b is satisfied. To the extent that

the mother argues that she is, was and always has been a legal

resident of Florida, we need note only that "the determination of

a child's home state under the UCCJ[E]A . . . is separate and

distinct from the determination of either the parents' or the

child's legal residence" (Matter of Consford v Consford, 271 AD2d

106, 111 [2000] [emphasis omitted]).

As to the second criteria – namely, a determination that

"the child, the child's parents, and any person acting as a

parent do not presently reside in the other state" (Domestic

Relations Law § 76-b [2]) – the record reflects, as noted

previously, that the mother and the child had been residing in

this state since late 2010, as evidenced by the mother's own

statements and the multiple occasions upon which she supplied

Family Court with her New York address. Inasmuch as Family Court
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had before it ample evidence from which it could reasonably

conclude that the parties and the child were not then Florida

residents, it is clear that the jurisdictional predicates under

Domestic Relations Law § 76-b were satisfied. Accordingly,

Family Court erred in concluding that it did not have subject

matter jurisdiction over these proceedings.

To the extent that the mother argues that the UCCJEA is –

under the facts presented here – preempted by the Parental

Kidnapping Prevention Act of 1980 (28 USC § 1738A [hereinafter

PKPA]), we disagree. There is no question that where the

provisions of the UCCJEA and the PKPA are in conflict, the PKPA

preempts the UCCJEA pursuant to the Supremacy Clause of the US

Constitution (see Matter of Bowman v Bowman, 82 AD3d 144, 151

[2011]). Here, however, we discern no such conflict. The PKPA

provides that once a state court has made a custody or visitation

determination consistent with the provisions thereof, that

court's jurisdiction continues so long as "such court has

jurisdiction under the law of such [s]tate" (28 USC § 1738A [c]

[1]) and "such [s]tate remains the residence of the child or of

any contestant" (28 USC § 1738A [d]). The PKPA further provides

that a state court "may not modify a visitation determination

made by a court of another [s]tate unless the court of the other

[s]tate no longer has jurisdiction to modify such determination

or has declined to exercise jurisdiction" in that regard (28 USC

§ 1738A [h]). These provisions are not inconsistent with the

continuing jurisdiction predicates of the UCCJEA as set forth in

Domestic Relations Law § 76-a.3

3 Similarly, under Florida law, a court of that state

retains exclusive, continuing jurisdiction over a custody

determination until "[a] court of [that] state or a court of

another state determines that the child, the child's parent, and

any person acting as a parent do not presently reside in [that]

state" (Fla Stat § 61.515 [1] [b]).
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As to the application of the PKPA to this matter, inasmuch

as Florida has not declined jurisdiction – indeed, it has

evidenced a desire to retain jurisdiction4 – the question becomes

whether Florida lost jurisdiction by virtue of the fact that, for

a period of at least two years, neither the mother, the father

nor the child resided in that state (see generally Matter of Hahn

v Rychling, 258 AD2d 832, 833 [1999], lv dismissed 93 NY2d 954

[1999]). Although the PKPA allows for periods of temporary

absence from a state (see 28 USC § 1738A [b] [4]), given the

length of time that the mother and the child remained in this

state – a period encompassing a substantial portion of the young

child's life – we do not view the mother's absence from Florida

as temporary. Accordingly, we are satisfied that Florida lost

jurisdiction in this matter, thereby permitting Family Court to

modify that state's initial determination relative to the issue

of visitation.

In light of the foregoing, Family Court erred in concluding

that it lacked subject matter jurisdiction to entertain the

various petitions filed relative to custody and visitation of the

parties' child. Accordingly, we reverse the order granting the

mother's motion to, among other things, vacate all prior orders

rendered in these proceedings, and we remit these matters to

Family Court for further proceedings. Although we are mindful

that the mother and the child apparently now reside in Florida,

the fact remains that, at all times relevant to the petitions

filed in these matters and the mother's underlying motion, Family

Court had subject matter jurisdiction over these proceedings and

erred in concluding to the contrary.5

4 In the context of resolving the mother's underlying

motion, Family Court contacted its Florida counterpart and

inquired as to whether "Florida wish[ed] to retain jurisdiction"

– an inquiry that the Florida court answered in the affirmative.

5 To the extent that the father and the attorney for the

child take issue with Family Court's decision to contact the

Florida court in order to inquire as to that court's position

relative to jurisdiction (see Domestic Relations Law § 75-i),

inasmuch as the papers filed in opposition to the mother's motion
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Lahtinen, J.P., Garry and Clark, JJ., concur.

ORDERED that the order is reversed, on the law, without

costs, motion denied and matter remitted to the Family Court of

Montgomery County for further proceedings not inconsistent with

this Court's decision.

ENTER:

Robert D. Mayberger

Clerk of the Court

do not appear in the record before us, it is impossible for us to

determine whether, consistent with the provisions of the statute,

the parties were promptly informed of Family Court's

communication with the Florida court (see Domestic Relations Law

§ 75-i [4]) and thereafter afforded "the opportunity to present

facts and legal arguments before a decision on jurisdiction [was]

made" (Domestic Relations Law § 75-i [2]).