Jenkins v. Jenkins

Peters, J. (concurring in part and dissenting in part).

We agree with the majority’s determination that because New York maintained exclusive, continuing jurisdiction to modify the 1999 custody order, Family Court erred in dismissing the proceedings for lack of subject matter jurisdiction. However, we do not agree that we should decide the question of inconvenient forum and hold that the matter was properly transferred to Georgia.

*637Pursuant to Domestic Relations Law § 76-a, Family Court’s jurisdiction continues until “neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available . . . concerning the child’s care, protection, training, and personal relationships” (Domestic Relations Law § 76-a [1] [a]). Indeed, when the mother sought to vacate the October 2002 order, Family Court determined that it had continuing exclusive jurisdiction due to its January 1999 order of custody and described the significant connections that still exist with the child and parents in this state.* Moreover, the record reflects that all parties, including the grandparents, lived in New York until the end of October 2000 when the mother relocated with this child without the permission of either the court or the father and that the parties engaged in extensive litigation in New York. For these reasons, we agree with the majority that Family Court erred in concluding that it no longer had continuing exclusive jurisdiction pursuant to Domestic Relations Law § 76-a (1) (a).

However, we do not agree with the majority that, based upon this record, we should address and resolve this case by finding that New York was an inconvenient forum. Domestic Relations Law § 76-f specifically requires that before such a determination is made, Family Court “shall” allow the parties to make a submission on this issue and then “shall” consider all relevant factors including those listed in Domestic Relations Law § 76-f (2) (a)-(h). We are not persuaded that the offer made to the parties to make a submission when the only issue was the child’s “home state” jurisdiction suffices (see Matter of Rey v Spinetta, 8 AD3d 393, 394 [2004]; compare Matter of DeGrizje v Delviccario, 279 AD2d 574, 575 [2001], lv denied 96 NY2d 716 [2001]).

In light of Family Court’s limitation of the submission by the parties to the issue of “home state” jurisdiction and in the absence of sufficient evidence in the record addressing the relevant factors (compare Matter of Jun Cao v Ping Zhao, 2 AD3d 1203, 1204 [2003], lv denied 1 NY3d 509 [2004]), we would reverse and remit the matter to Family Court for further proceedings (see Matter of Dawber v Kelly, 287 AD2d 625, 626 [2001]; *638Matter of Uhl v Uhl, 244 AD2d 935, 936 [1997]; Matter of Smith v Smith, 226 AD2d 1095, 1096 [1996]).

Kane, J., concurs. Ordered that the order is affirmed, without costs.

It detailed that both the grandparents and the father continue to reside in New York and that the child was sent to New York by the mother in 2002. Family Court also expressed a concern that the child might be in danger of neglect if he were returned to Georgia and that the mother might, once again, secrete the child in another jurisdiction if New York declined to exercise jurisdiction since she had twice removed the child in contravention of New York orders.