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DESPITE FLORIDA DIVORCE, NEW YORK HAD JURISDICTION OVER THE CUSTODY/VISITATION MATTERS BASED UPON THE PARTIES’ PRESENCE IN NEW YORK.

Reversing Family Court, the Third Department determined New York had jurisdiction over the custody/visitation matters, despite the Florida divorce. The parties had subsequently moved from Florida to New York and there was no indication the relocation was temporary. The criteria for New York’s jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) has nothing to do with the legal residence of the parties. The court further determined that the relevant provisions of the UCCJEA did not conflict with the Parental Kidnapping Prevention Act (PKPA) and was therefore not preempted by the PKPA. With respect to New York’s juriisdiction, the court wrote:

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” (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]…). 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] … ). Matter of Lewis v Martin, 2015 NY Slip Op 08879, 3rd Dept 12-3-15

FAMILY LAW (JURISDICTION OVER CUSTODY, NEW YORK’S JURISDICTION DESPITE FLORIDA DIVORCE)/JURISDICTION (CUSTODY, NEW YORK’S JURISDICTION DESPITE FLORIDA DIVORCE)/UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) (JURISDICTION OF NEW YORK DESPITE FLORIDA DIVORCE)/PARENTAL KIDNAPPING PREVENTION ACT (PKPA) (NO CONFLICT WITH UCCJEA)

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