The relief the majority would afford petitioner father on his cross petition seeking to modify the child custody decree of the Italian court is, at the very least, premature. It rests upon an assertion of jurisdiction that would, on this record, appear to be forbidden by Domestic Relations Law § 76-e (1), and raises the distinct possibility of competing child custody determinations—precisely the eventuality that the Uniform Child Custody Jurisdiction and Enforce*100ment Act (UCCJEA) (Domestic Relations Law art 5-A) was designed to avoid (see Vanneck v Vanneck, 49 NY2d 602 [1980].)
As the majority observes, Domestic Relations Law § 76-e (1) explicitly forbids a state from exercising jurisdiction in a custody matter
“if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this article, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum.”
The Italian proceeding respecting custody of the subject child was commenced in April 2004 when, as the majority recognizes, Italy was indisputably the “home state” of the child; and that proceeding evidently continues, the father having filed within it an apparently still-pending appeal challenging the Italian court’s award of sole custody to respondent mother. Inasmuch as there is no evidence that the duly commenced Italian custody proceeding has been concluded, or stayed in deference to the New York proceeding, there exists no basis to conclude that an assertion of jurisdiction by this State’s Family Court to modify custody would not run afoul of the clear prohibition set forth in Domestic Relations Law § 76-e (1).
Contrary to the majority’s “suggestion,” a foreign state’s exclusive, continuing jurisdiction under the UCCJEA does not depend upon its adherence to appellate procedures similar to those followed in this State.1 Moreover, even if petitioner father’s appeal were properly viewed as a separate proceeding for modification of the Italian custody decree,2 there would still exist no ground to conclude that at the time the appeal was filed the Italian court did not have jurisdiction in substantial conformity with article 5-A. Having issued the initial custody determination, the Italian court had “exclusive, continuing jurisdiction over the determination” (Domestic Relations Law *101§ 76-a [1]) until it either deferred to the courts of another state on the ground that there was no longer a “significant connection” between the matter and Italy (Domestic Relations Law § 76-a [1] [a]), or there was a judicial determination that neither the child nor the child’s parents resided in Italy (Domestic Relations Law § 76-a [1] [b].) Neither of these conditions was met at the time of petitioner’s appeal to the Appeal Court of Rome in July 2006, and it is, accordingly, evident that at the time of the appeal the Italian court retained exclusive and continuing jurisdiction over the custody matter, regardless of whether the appeal is characterized as an original proceeding. It follows that the appeal was “commenced in a court of another state having jurisdiction substantially in conformity with [article 5-A],” and that the prohibition upon the exercise of jurisdiction over the matter by the courts of this State contained in Domestic Relations Law § 76-e (1) was thus triggered. There is no basis for the majority’s apparent view that a court with exclusive and continuing jurisdiction may be stripped of its jurisdiction in the absence of a judicial finding that the criteria set forth in Domestic Relations Law § 76-a have been met. Indeed, the statute is explicit that exclusive and continuing jurisdiction is retained “until” there has been a judicial determination that the statutorily enumerated conditions for terminating exclusive and continuing jurisdiction have been satisfied. There was no such finding at the time of petitioner’s Italian appeal.
While I join the majority in strongly disapproving respondent’s flight to Italy with the child in evident anticipation of the dismissal of her family offense petition and in violation of a Family Court order, the proper, prudent and, indeed, statutorily mandated course in this matter, is not to proceed headlong to a hearing in this State’s courts on the merits of the cross petition, but to remand the matter with the direction that Family Court communicate with the Italian court to determine whether the custody proceedings in that court are still pending (Domestic Relations Law § 76-e [2]). If they are, and the Italian court declines to determine that the courts of this State are the more appropriate forum for a determination respecting the child’s custody, the cross petition must be dismissed (id.), and, in that event, there appears no reason why the parties should not be bound by the Italian court’s eventual determination of their custody dispute. If, on the other hand, the Italian court defers to the courts of this State, the father’s New York Family Court cross petition should proceed. I agree with the majority that at *102the time the cross petition was filed, New York was the child’s “home state” and that the cross petition should not have been dismissed on forum non conveniens grounds.
Friedman, Sullivan and Gonzalez, JJ., concur. Lippman, P.J., dissents in part in a separate opinion.
Order, Family Court, New York County, entered on or about June 12, 2007, reversed, on the law, -without costs, the cross petition for modification of a custody order issued by a foreign court reinstated and the matter remanded for further proceedings consistent with the decision herein, including a custody inquest.
. It should be noted, in any case, that the period between the final custody decree of the Civil Court of Rome and petitioner’s appeal was not as protracted as the majority would make it appear. While it is true that seven months intervened between the December 2, 2005 custody decree and the father’s July 16, 2006 appeal, the decree was modified in March 2006 by the Civil Court of Rome on the application of both parties to correct a “material error.”
. There appears, however, no sound basis to so characterize the appeal, which the record shows was filed not in the Civil Court of Rome, which issued the custody decree, but in the Appeal Court of Rome.