                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 3, 2015                   519137
_____________________________________

In the Matter of JACK L.
   LEWIS JR.,
                    Appellant,
      v
                                              MEMORANDUM AND ORDER
MICHELLE M. MARTIN,
                      Respondent.

(And Three Other Related Proceedings.)
______________________________________


Calendar Date:   October 13, 2015

Before:   Lahtinen, J.P., Garry, Egan Jr. and Clark, JJ.

                             __________


     Joseph Nalli, Fort Plain, for appellant.

      Ramos & Ramos, Buffalo (Joshua I. Ramos of counsel), for
respondent.

     William J. Mycek, Amsterdam, attorney for the child.

                             __________


Egan Jr., J.

      Appeal from an order of the Family Court of Montgomery
County (Cortese, J.), entered May 22, 2014, which, in four
proceedings pursuant to Family Ct Act article 6, granted
respondent's motion to, among other things, vacate certain prior
orders.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) were married in the Village of Fort
Plain, Montgomery County in June 2007 and are the parents of a
son (born in 2008). In July 2009, the parties were divorced in
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Florida, where they apparently both resided at that time. As
part of the divorce action, the parties entered into a marital
settlement agreement wherein they agreed that the mother would
have sole legal and physical custody of the child with no
visitation to the father. This settlement agreement was
incorporated into the parties' resulting judgment of divorce, the
latter of which indicated that Florida would "reserve[]
jurisdiction for all legal and proper purposes."

      Around the time of the parties' divorce, the father
returned to Fort Plain and, at some point in late 2010, the
mother followed suit – ostensibly to deal with an unrelated
family matter. In August 2012, at which point the mother and the
child were – nearly two years later – still residing in this
state, the father filed a petition in Montgomery County Family
Court asking for visitation with the child. By order entered
March 8, 2013, Family Court granted the father, who had virtually
no prior contact with the child, one hour of supervised
visitation each month. Within a matter of weeks, the father
filed a modification petition seeking to prevent the mother from
being present during such visits. The mother, in turn, filed a
petition in June 2013 requesting, among other things, permission
to relocate with the child to Florida. In response, the father
filed an enforcement petition in August 2013, contending that the
mother was not making the child available for the court-ordered
monthly visitations. At no time during any of these proceedings
– either in their appearances before Family Court or in the
context of the various petitions filed in these matters – did
either party make any mention of the prior award of custody in
Florida.1

      In August 2013, the parties appeared before Family Court,
at which time Family Court apparently issued a temporary order
granting the mother sole legal and physical custody of the child


    1
        At the initial appearance in October 2012, the attorney
for the child did make a passing reference to the fact that the
father may have agreed to no visitation in the context of the
parties' Florida divorce action; no further development or
discussion of this issue appears in the record.
                              -3-                519137

and permission to relocate to Florida – with the understanding
that the mother would return for a hearing on the pending
petitions. Thereafter, in December 2013, the parties returned to
Family Court and agreed, insofar as is relevant here, that the
mother would have sole legal custody of the child and be
permitted to relocate with the child to Florida; the parties
further agreed that the father would be awarded two weeks of
unsupervised visitation with the child each summer. In January
2014, Family Court reduced the parties' agreement to a written
order.

      Having received the very relief she requested from Family
Court, the mother then moved to, among other things, vacate
Family Court's January 2014 order (as well as all prior orders
issued in these proceedings), contending that Family Court lacked
subject matter jurisdiction over the custody and visitation
issues. By order entered May 22, 2014, Family Court, among other
things, granted the mother's application, finding that Florida
had exclusive and continuing jurisdiction over the parties, and
vacated all prior orders issued in connection with these
proceedings. This appeal by the father ensued.2

      We reverse. Consistent with the provisions of the Uniform
Child Custody Jurisdiction and Enforcement Act (hereinafter
UCCJEA), which is codified in Domestic Relations Law article 5-A,
"a court of this state may not modify a child custody
determination made by a court of another state unless a court of
this state has jurisdiction to make an initial custody
determination under [Domestic Relations Law § 76 (1) (a) or (b)]"
and, insofar as is relevant here, "[a] court of this state . . .
determines that the child, the child's parents, and any person
acting as a parent do not presently reside in the other state"


    2
        The father's subsequent application for a stay pending
appeal was denied by a Justice of this Court. Additionally,
although Family Court's order recites the papers considered prior
to ruling upon the mother's motion, the record on appeal does not
appear to contain many of the submissions filed in connection
therewith, including the materials submitted by the father and
the attorney for the child in opposition thereto.
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(Domestic Relations Law § 76-b [2]). As to the first criteria,
jurisdiction to render an initial custody determination may be
predicated upon, among other things, a finding that "this state
is the home state of the child on the date of the commencement of
the proceeding" (Domestic Relations Law § 76 [1] [a]). A child's
home state, in turn, is defined as "the state in which a child
lived with a parent or a person acting as a parent for at least
six consecutive months immediately before the commencement of a
child custody proceeding" (Domestic Relations Law § 75-a [7]; see
Matter of Joy v Kutzuk, 99 AD3d 1049, 1050 [2012], lv denied 20
NY3d 856 [2013]). A child custody proceeding includes a
proceeding in which visitation with the child is at issue (see
Domestic Relations Law § 75-a [4]), and the commencement of a
proceeding "means the filing of the first pleading in a
proceeding" (Domestic Relations Law § 75-a [5]; see Matter of
Andrews v Catanzano, 44 AD3d 1109, 1110 [2007]).

      At the time that the father filed his first petition in
August 2012, the mother – by her own admission – had been
residing with the child in this state since late 2010, and she
gave no indication – at that time – that her presence in this
state was temporary (see Matter of Destiny EE. [Karen FF.], 90
AD3d 1437, 1440-1441 [2011], lv dismissed 19 NY3d 856 [2012]).
As a result, there is no question that New York qualified as the
home state of the child and, therefore, the first criteria of
Domestic Relations Law § 76-b is satisfied. To the extent that
the mother argues that she is, was and always has been a legal
resident of Florida, we need note only that "the determination of
a child's home state under the UCCJ[E]A . . . is separate and
distinct from the determination of either the parents' or the
child's legal residence" (Matter of Consford v Consford, 271 AD2d
106, 111 [2000] [emphasis omitted]).

      As to the second criteria – namely, a determination that
"the child, the child's parents, and any person acting as a
parent do not presently reside in the other state" (Domestic
Relations Law § 76-b [2]) – the record reflects, as noted
previously, that the mother and the child had been residing in
this state since late 2010, as evidenced by the mother's own
statements and the multiple occasions upon which she supplied
Family Court with her New York address. Inasmuch as Family Court
                              -5-                519137

had before it ample evidence from which it could reasonably
conclude that the parties and the child were not then Florida
residents, it is clear that the jurisdictional predicates under
Domestic Relations Law § 76-b were satisfied. Accordingly,
Family Court erred in concluding that it did not have subject
matter jurisdiction over these proceedings.

      To the extent that the mother argues that the UCCJEA is –
under the facts presented here – preempted by the Parental
Kidnapping Prevention Act of 1980 (28 USC § 1738A [hereinafter
PKPA]), we disagree. There is no question that where the
provisions of the UCCJEA and the PKPA are in conflict, the PKPA
preempts the UCCJEA pursuant to the Supremacy Clause of the US
Constitution (see Matter of Bowman v Bowman, 82 AD3d 144, 151
[2011]). Here, however, we discern no such conflict. The PKPA
provides that once a state court has made a custody or visitation
determination consistent with the provisions thereof, that
court's jurisdiction continues so long as "such court has
jurisdiction under the law of such [s]tate" (28 USC § 1738A [c]
[1]) and "such [s]tate remains the residence of the child or of
any contestant" (28 USC § 1738A [d]). The PKPA further provides
that a state court "may not modify a visitation determination
made by a court of another [s]tate unless the court of the other
[s]tate no longer has jurisdiction to modify such determination
or has declined to exercise jurisdiction" in that regard (28 USC
§ 1738A [h]). These provisions are not inconsistent with the
continuing jurisdiction predicates of the UCCJEA as set forth in
Domestic Relations Law § 76-a.3




    3
        Similarly, under Florida law, a court of that state
retains exclusive, continuing jurisdiction over a custody
determination until "[a] court of [that] state or a court of
another state determines that the child, the child's parent, and
any person acting as a parent do not presently reside in [that]
state" (Fla Stat § 61.515 [1] [b]).
                              -6-                519137

      As to the application of the PKPA to this matter, inasmuch
as Florida has not declined jurisdiction – indeed, it has
evidenced a desire to retain jurisdiction4 – the question becomes
whether Florida lost jurisdiction by virtue of the fact that, for
a period of at least two years, neither the mother, the father
nor the child resided in that state (see generally Matter of Hahn
v Rychling, 258 AD2d 832, 833 [1999], lv dismissed 93 NY2d 954
[1999]). Although the PKPA allows for periods of temporary
absence from a state (see 28 USC § 1738A [b] [4]), given the
length of time that the mother and the child remained in this
state – a period encompassing a substantial portion of the young
child's life – we do not view the mother's absence from Florida
as temporary. Accordingly, we are satisfied that Florida lost
jurisdiction in this matter, thereby permitting Family Court to
modify that state's initial determination relative to the issue
of visitation.

      In light of the foregoing, Family Court erred in concluding
that it lacked subject matter jurisdiction to entertain the
various petitions filed relative to custody and visitation of the
parties' child. Accordingly, we reverse the order granting the
mother's motion to, among other things, vacate all prior orders
rendered in these proceedings, and we remit these matters to
Family Court for further proceedings. Although we are mindful
that the mother and the child apparently now reside in Florida,
the fact remains that, at all times relevant to the petitions
filed in these matters and the mother's underlying motion, Family
Court had subject matter jurisdiction over these proceedings and
erred in concluding to the contrary.5


    4
        In the context of resolving the mother's underlying
motion, Family Court contacted its Florida counterpart and
inquired as to whether "Florida wish[ed] to retain jurisdiction"
– an inquiry that the Florida court answered in the affirmative.
    5
        To the extent that the father and the attorney for the
child take issue with Family Court's decision to contact the
Florida court in order to inquire as to that court's position
relative to jurisdiction (see Domestic Relations Law § 75-i),
inasmuch as the papers filed in opposition to the mother's motion
                              -7-                  519137

     Lahtinen, J.P., Garry and Clark, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court




do not appear in the record before us, it is impossible for us to
determine whether, consistent with the provisions of the statute,
the parties were promptly informed of Family Court's
communication with the Florida court (see Domestic Relations Law
§ 75-i [4]) and thereafter afforded "the opportunity to present
facts and legal arguments before a decision on jurisdiction [was]
made" (Domestic Relations Law § 75-i [2]).
