                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: October 27, 2016                    522123
________________________________

In the Matter of JESSE SNOW,
                    Appellant,
      v                                      MEMORANDUM AND ORDER

DANIELLE ELMER,
                    Respondent.
________________________________


Calendar Date:    September 15, 2016

Before:    Peters, P.J., Egan Jr., Lynch, Rose and Aarons, JJ.

                              __________


     Lisa K. Miller, McGraw, for appellant.

     Keith R. Wolfe, Manlius, for respondent.

     Peter E. Smith, Wampsville, attorney for the child.

                              __________


Rose, J.

      Appeal from an order of the Family Court of Madison County
(McDermott, J.), entered November 5, 2015, which, in a proceeding
pursuant to Family Ct Act article 6, granted respondent's motion
to dismiss the petition.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the unmarried parents of a daughter
(born in 2003). In 2008, the father was sentenced to a 23-year
prison term in connection with the death of his fiancee's child
(People v Snow, 79 AD3d 1252 [2010], lv denied 16 NY3d 800
[2011]). Pursuant to a 2011 custody and visitation order, the
mother received sole legal and physical custody of the child and
the father was awarded six visits per year in prison, with
transportation to be provided by the paternal grandmother. In
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June 2014, the mother, unbeknownst to the father, relocated with
the child to Georgia. The father commenced the instant violation
proceeding four months later, alleging that the mother left New
York without providing him with a forwarding address and
terminated all contact between him and the child. The mother
then moved to dismiss this proceeding, contending, as is relevant
here, that New York was an inconvenient forum. Family Court
granted the mother's motion and dismissed the petition. The
father now appeals.

      We agree with the father's contention that Family Court
abused its discretion in finding that New York was an
inconvenient forum and, accordingly, reverse. It is undisputed
that Family Court has continuing jurisdiction here (see Domestic
Relations Law § 76-a), but that "it may decline to exercise such
jurisdiction if it determines that New York is an inconvenient
forum and that another state is a more appropriate forum" (Matter
of Frank MM. v Lorain NN., 103 AD3d 951, 952 [2013]; see Domestic
Relations Law § 76-f [1]; Matter of Miller v Shaw, 123 AD3d 1131,
1132 [2014]). This determination "depends on the specific
issue(s) to be decided in the pending litigation" (Matter of
Anthony B. v Priscilla B., 88 AD3d 590, 590 [2011]; see e.g.
Matter of Belcher v Lawrence, 98 AD3d 197, 202 [2012]; Matter of
Jenkins v Jenkins, 9 AD3d 633, 636 [2004], lvs dismissed 5 NY3d
881 [2005], 6 NY3d 751 [2005]), and must involve consideration of
all relevant factors, including those set forth in the statute
(see Domestic Relations Law § 76-f [2] [a]-[h]; Matter of Eisner
v Eisner, 44 AD3d 1111, 1113 [2007], lv denied 9 NY3d 816 [2007];
Matter of Scala v Tefft, 42 AD3d 689, 692 [2007]).

      Although Family Court articulated its consideration of each
of the statutory factors, we disagree with the weight it accorded
certain factors and find that it failed to view those factors in
light of the sole issue to be decided in this proceeding, namely,
whether the mother violated the 2011 order. First, in
considering whether the child or a sibling was the victim of
violence, mistreatment or abuse that was likely to continue in
the future (see Domestic Relations Law § 76-f [2] [a]), Family
Court found that the child was negatively affected by the
father's criminal actions, despite the fact that all of the
parties agreed that this factor was not relevant, neither the
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child nor a sibling was involved in the 2008 case and Family
Court had awarded the father six visits per year in 2011. Next,
the father promptly commenced this proceeding four months after
the mother relocated with the child (see Domestic Relations Law
§ 76-f [2] [b]) – which occurred without his knowledge or Family
Court's permission – and we find that the additional 12 months
that it took to dispose of this proceeding does not militate in
favor of finding that New York is an inconvenient forum.
Further, the father and the paternal grandmother, whose testimony
would be central to the issue of whether a violation occurred,
are located in New York, and any testimony by the mother could be
presented "by telephone, audiovisual means, or other electronic
means" (Domestic Relations Law § 75-j [2]; see Domestic Relations
Law § 76-f [2] [f]; Matter of Belcher v Lawrence, 98 AD3d at
202). Moreover, Family Court, having presided over the
proceedings that led to the 2011 order, is far more familiar with
the case than the Georgia courts and would, therefore, be able to
resolve this proceeding in a more expeditious manner (see
Domestic Relations Law § 76-f [2] [g], [h]). Thus, upon our
review, we cannot conclude that the record supports Family
Court's finding that New York was an inconvenient forum
(see Matter of Miller v Shaw, 123 AD3d at 1133; DeJac v DeJac, 17
AD3d 1066, 1067-1068 [2005], lv denied 20 AD3d 946 [2005];
compare Matter of Kelly v Krupa, 63 AD3d 1395, 1395-1396 [2009]).

     Peters, P.J., Egan Jr., Lynch and Aarons, JJ., concur.


      ORDERED that the order is reversed, on the law, without
costs, motion denied, and matter remitted to the Family Court of
Madison County for further proceedings not inconsistent with this
Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
