(dissenting). Both the Uniform Child Custody Jurisdiction Act (Domestic Relations Law art 5-A [hereinafter UCCJA]) and the Parental Kidnaping Prevention Act (hereinafter PKPA) were enacted with the declared purpose of deterring abductions and other unilateral removals of children to obtain custody awards. They sought to avoid jurisdictional competition and relitigation of custody decisions of other States, all the while promoting the exchange of information and mutual assistance between courts for a further facilitation in the area of enforcement when presented with custody decrees of sister States (see, Domestic Relations Law § 75-b; Pub L 96-611, §§ 7, 8 [c], 94 US Stat 3569; see also, Matter of Ricky D. C. v Carol A. C., 139 Misc 2d 826, 832-833). Although Texas has adopted the UCCJA (Tex Fam Code Annot former §§ 11.51 — 11.75, recodified at Tex Fam Code Annot former *114§ 152.001 et seq. [Vernon 1996]),1 the PKPA will preempt the UCCJA under the Supremacy Clause of the US Constitution (see, Matter of Mott v Patricia Ann R., 236 AD2d 819, 820, affd, 91 NY2d 856).
Viewed as an initial custody determination, the UCCJA clearly details that when a New York court has reason to believe that a custody petition is pending in another State, notwithstanding any claim of jurisdictional superiority “the court ‘shall stay [its own] proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with sections seventy-five-s through seventy-five-v of this article’ ” (Vanneck v Vanneck, 49 NY2d 602, 609-610, quoting Domestic Relations Law § 75-g [3]). The purpose of such communication is to garner information to assess whether the other State court was “exercising jurisdiction substantially in conformity” with the UCCJA (Domestic Relations Law § 75-g [1]). In that vein, we agree with the majority that Erica did not have a “home State” — as that term is defined and applied under both the UCCJA (see, Domestic Relations Law § 75-c [5]; § 75-d [1] [d] [i]; Tex Fam Code Annot former § 152.002 [6]; § 152.003 [a]) and the PKPA (see, 28 USC § 1738A [b] [4]; [c]) as of December 30, 1997 — on the date respondent commenced the divorce proceeding in Texas, since Erica was living in Florida and had not resided in any State for the requisite six-month period. Nonetheless, Texas had a jurisdictional predicate for exercising custody under the PKPA (see, 28 USC § 1738A [c] [2] [D]) and the UCCJA (see, Tex Fam Code Annot former § 152.003 [a] [4]). Those statutes permit it to exercise jurisdiction, as it did, whenever it appears that no other State would be able to do so and it is in the best interest of the child for the court to assume jurisdiction (see, In re Lambert, 993 SW2d 123 [Tex App]; see also, McDaniel v McDaniel, 262 AD2d 1066).
Contrary to the contention raised by the majority, we do not condone a principle of waiver as to the issue of subject matter *115jurisdiction. The propriety of the Texas court’s exercise of jurisdiction was simply buttressed by the parties’ continued appearance in such court. Had petitioner defaulted in the Texas matrimonial action (see, Fletcher v Fletcher, 20 Ark App 190, 726 SW2d 684) or challenged the authority of the Texas court to grant custody in the first instance by filing a special appearance (see, Lemley v Miller, 932 SW2d 284 [Tex]), her subsequent contention that Texas was without jurisdiction to determine custody would not seem so disingenuous. Hence, as the Texas court had a jurisdictional basis upon which it made a determination of custody, the absence of any communication from the New York court, a stay of its proceeding or deference of the matter to Texas, mandates our conclusion that Family Court failed to follow statutory mandates and, instead, assumed jurisdiction. Even applying the threshold noted by the majority to force inquiry with an originating court, in our view Family Court erred in failing to find even a “colorable claim” to jurisdiction (see, Vanneck v Vanneck, 49 NY2d 602, supra).
Turning to the issue of modification, we remain unable to find any viable basis upon which Family Court could have exercised jurisdiction. The PKPA provides that the jurisdiction of the Texas court which made the initial custody determination consistent with the provisions of its article will continue so long as it has jurisdiction under its own laws and the State “remains the residence of the child or of any contestant” (28 USC § 1738A [d]). Despite respondent’s military status affecting his physical locale, he is deemed to continue to reside in Texas (see, 28 USC § 1738A [c] [2] [A]) and was granted the right, by the initial decree of the Texas court, to designate the residence of the child. Although Family Court read the Texas statute as relinquishing the ability to modify its own custody order once a new home state was created, our review of Texas law reveals that a court is prohibited from exercising jurisdiction to modify custody under these circumstances “unless the action was filed before the new home state was acquired or all parties acquiesce in writing” (Phillips v Beaber, 995 SW2d 655, 657 [Tex]; see, Tex Fam Code Annot former § 152.003 [d]). Since the Texas proceeding was filed before New York became the child’s home State, we believe that Texas has continuing jurisdiction under its law.2
Nor can we find that the Texas court intended to relinquish its ability to modify its prior custodial order. The record makes *116clear that by the terms of the Texas order, respondent was the parent entitled to physical custody of this child yet the child was removed by petitioner to New York and stayed there in derogation thereof. Evidenced by its State statutes, the PKPA and by the further orders issued after the commencement of proceedings in New York, Texas clearly communicated its intent to retain jurisdiction notwithstanding the noncustodial parent’s refusal to produce the child.
Overriding policy considerations both in the PKPA and UCCJA demand that jurisdiction in New York be declined because of petitioner’s wrongful conduct in not only precluding access to the child prior to a final decree in Texas, but also in continuing to disregard lawful court orders of the Texas courts once issued (see, Domestic Relations Law § 75-i). Despite the characterization by the majority of petitioner as a native New Yorker who simply returned to be with her extended family, we note that the record fails to include any such information pertaining to petitioner’s background. Thus, to the extent that the majority seeks to implicitly equate her “return” to New York with respondent’s residency in Texas where his family resides, we find it unsupportable.
While we assertively argue for a reversal of Family Court’s order, we are uncomfortable with the result we champion. But, constrained by principles embodied in the UCCJA and PKPA, we see no other viable conclusion. Nonetheless, we recognize that New York has acquired substantial evidence concerning this child’s current and future care, protection, training and personal relationships. Thus, we would not simply dismiss the proceedings without at least offering Texas timely access to that information through the provision of auxiliary services. Instead, we would reverse the order and remit this matter to Family Court with a direction that it stay all proceedings and immediately convey an offer to aid the Texas court to obtain any relevant information it desires concerning the well-being of this child. If the Texas court declines the offer, Family Court should dismiss the petitions.
Mercure and Spain, JJ., concur with Carpinello, J.; Peters, J., and Cardona, P. J., dissent in a separate opinion by Peters, J.
Ordered that the order is affirmed, without costs.
. In 1997, a successor code to the UCCJA entitled the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter the UCCJEA) was promulgated to amend the UCCJA predominantly in the area of enforcement. It further seeks to conform to the provisions of the PKPA (see, Sobie, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law § 75-b, at 323). New York has not yet adopted the new legislation. In 1999, Texas repealed the UCCJA and adopted the UCCJEA (Acts 1999, 76th Leg, ch 34, § 1, 1999 Tex Gen Laws 52 [codified at Tex Fam Code Annot § 152.001 et seq.]); the UCCJA is, however, controlling in this case.
. Notably, even petitioner’s attorney acknowledged that Texas had continuing jurisdiction in the affidavit he submitted in support of the transfer motion.