                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 2, 2015                     518525
________________________________

In the Matter of DARIA A.
   WENGENROTH,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

THOMAS F. McGUIRE III,
                    Respondent.
________________________________


Calendar Date:   February 19, 2015

Before:   Peters, P.J., McCarthy, Rose and Clark, JJ.

                             __________


     Teresa C. Mulliken, Harpersfield, for appellant.

     Jehed F. Diamond, Delhi, for respondent.

     Christine A. McCue, Central Bridge, attorney for the child.

                             __________


McCarthy, J.

      Appeal from an order of the Family Court of Delaware County
(Becker, J.), entered January 30, 2014, which, among other
things, in a proceeding pursuant to Domestic Relations Law
article 5-A, granted a motion by the attorney for the child to
dismiss the petition.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the parents of a daughter (born in
2002). In 2007, Supreme Court (McGuirk, J.) in Orange County
entered a judgment of divorce which granted the mother sole
custody of the daughter, with reasonable visitation to the
father. The daughter went to visit the father in Georgia in
spring or summer 2011. The mother then gave permission for the
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child to remain there for the following school year. The child
has remained in Georgia with the father ever since, although the
mother alleges that she has repeatedly asked that the child be
returned to her.

      In September 2013, the mother commenced this proceeding to
enforce the custody provisions of the divorce judgment pursuant
to the Uniform Child Custody Jurisdiction and Enforcement Act
(see Domestic Relations Law art 5-A [hereinafter UCCJEA]),
seeking eventual return of the child. After an initial
appearance, the attorney for the child moved to dismiss the
petition on the ground that Family Court did not retain
exclusive, continuing jurisdiction over the matter (see Domestic
Relations Law § 76-a), or, alternatively, that the court decline
jurisdiction because New York is an inconvenient forum (see
Domestic Relations Law § 76-f). Family Court dismissed the
petition. The mother appeals.

      We reject the attorney for the child's argument that the
mother's petition was not ripe for review. Although the mother
did not demand immediate return of the child, but was sensitive
to the child's school schedule and sought her return at a later
time, the mother was seeking to enforce the divorce judgment and
the father expressed no intention to allow the child to return to
the mother's custody. Thus, the mother's petition was not based
on a future uncertain contingency (compare Matter of Morris v
Ciaramitaro, 13 AD3d 924, 924 [2004]).

      Considering the mother's demand, however, we cannot accept
her current argument that Family Court erred by failing to hold a
hearing within three days of her filing of the petition. That
requirement applies to the expedited enforcement of a custody
determination (see Domestic Relations Law § 77-g [3]; see also
Domestic Relations Law § 77-i). Inasmuch as the mother did not
seek immediate return of the child, the court did not err in
failing to adhere to that requirement here.

      The mother's main argument is that Family Court erred in
applying title II of the UCCJEA, entitled "[j]urisdiction,"
rather than title III, entitled "[e]nforcement." While title III
is not limited to enforcement of out-of-state custody
                              -3-                518525

determinations, and its "mechanisms . . . are presumptively
available in any enforcement action" (Merril Sobie, Practice
Commentaries, McKinney's Cons Laws of NY, Book 14, Domestic
Relations Law § 77, at 563; see Domestic Relations Law § 77),
several of the sections within title III do refer or apply to
custody determinations issued by courts in other states (see e.g.
Domestic Relations Law §§ 77-b, 77-d, 77-e, 77-l). Similarly,
title II has sections dealing with initial custody determinations
and modification determinations (see Domestic Relations Law
§§ 76, 76-b), neither of which is sought by the petition here,
but the title overall is broader than those sections. Simply
because the mother's petition seeks enforcement of a custody
determination, rather than modification, does not mean that the
title addressing enforcement must be relied upon independently
and exclusively, without any possible reference to the title
addressing jurisdiction. Instead, courts can apply both the
jurisdiction and enforcement portions of the UCCJEA, where
applicable.

      A New York court that made a child custody determination
"has exclusive, continuing jurisdiction over the determination
until . . . a court of this state determines that neither the
child, [nor] the child and one parent, . . . have a significant
connection with this state and that substantial evidence is no
longer available in this state concerning the child's care,
protection, training, and personal relationships" (Domestic
Relations Law § 76-a [1] [a]). Here, Family Court determined
that the child had lived in Georgia with the father for more than
two years and all of her medical and educational records and
providers are in Georgia.1 While the mother and other family
members reside in New York, the child did not return to New York


    1
        Although the mother contends that she repeatedly
requested the return of her daughter – such that the child's time
in Georgia should not be held against the mother – the mother
agreed to allow the daughter to live with the father for an
entire school year, even if she considered that a "temporary"
transfer of custody. When the child was not returned to New York
after that school year, the mother waited more than a full year
before seeking court intervention through the petition at issue.
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– for visitation or any other reason – during the years that she
was living in Georgia (compare Matter of Mercado v Frye, 104 AD3d
1340, 1341 [2013], lv denied 21 NY3d 859 [2013]; Matter of King v
King, 15 AD3d 999, 1000-1001 [2005]). Thus, neither the child
nor the father had a significant connection with New York, and
substantial evidence regarding "the child's care, protection,
training, and personal relationships" is located in Georgia
rather than New York (Domestic Relations Law § 76-a [1] [a]).
According to the statute, after this determination, New York
courts no longer have exclusive, continuing jurisdiction over the
divorce judgment determining custody. Due to this determination,
Family Court properly dismissed the mother's petition for lack of
jurisdiction (see Matter of Brown v Heubusch, 124 AD3d 1396, 1397
[2015]; Matter of Maida v Capraro, 86 AD3d 924, 924 [2011]).

     Peters, P.J., Rose and Clark, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
