The Second Department, reversing Family Court, determined neither New York nor Pennsylvania was the “home state” of the child under the statutes and, under the circumstances, New York has jurisdiction to make an initial custody determination:
… [A]lthough the child was living in New York for six consecutive months immediately before this proceeding was commenced, he was not living with a parent in this state for that time period, because the mother did not move to New York until January 2018. Moreover, the maternal great grandmother was not a “person acting as a parent,” as that term is defined by statute, because she had not been awarded legal custody of the child by a court and did not claim a right to legal custody of the child … . …
Pennsylvania did not have jurisdiction over the matter. Pennsylvania also did not qualify as the home state of the child, since the child had been living in New York for more than six months prior to the commencement of the proceeding (see Domestic Relations Law § 76[1][a] …). Thus, the child did not have a home state at the time of commencement. In such a case, New York may exercise jurisdiction if “(i) the child . . . and at least one parent . . . have a significant connection with this state other than mere physical presence; and (ii) substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships” (Domestic Relations Law § 76[1][b] …).
The record demonstrates the child’s and the mother’s significant connection with New York, as well as the availability of substantial evidence in this state, which is where the child and the mother continue to reside with the maternal great grandmother, and where the child is enrolled in school and is seen by a pediatrician … . Matter of Defrank v Wolf, 2020 NY Slip Op 00126, Second Dept 1-8-20
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