Farrell v. Farrell

133 A.D.2d 530, 520 N.Y.S.2d 291, 1987 N.Y. App. Div. LEXIS 50010

Opinion

— Order unanimously affirmed without costs. Memorandum: Family Court correctly declined jurisdiction of petitioner’s custody application pursuant to the Federal Parental Kidnaping Prevention Act of 1980 (PKPA; 28 USC § 1738A). When the divorce action was commenced in Florida, that State was the home State of the child. Under its laws, Florida acquired jurisdiction to render a custody determination (see, Fla Stat Annot § 61.1308 [1] [a] [1]) and since the respondent continued to reside there, Florida continued to have jurisdiction to determine custody of the child of the marriage (28 USC § 1738A [d]). Under these circumstances, New York lacked jurisdiction to modify or supersede the Florida custody order (28 USC § 1738A [f]). Since the facts essential to consideration of jurisdiction under PKPA were not in dispute, a hearing was not required. Moreover, the jurisdictional provisions of PKPA preempt those of the Uniform Child Custody Jurisdiction Act (UCCJA; Domestic Relations Law art 5-A) (Enslein v Enslein, 112 AD2d 973, 975) and, therefore, we do not reach the issue of whether a hearing was required to determine if New York should exercise jurisdiction under the UCCJA (Domestic Relations Law § 75-d). We also do not reach the issue of whether the Pennsylvania custody order, made in the course of an abuse proceeding, would constitute an additional basis for declining jurisdiction of this petition. (Appeal from order of Onondaga County Family Court, Bersani, J.— custody.) Present — Callahan, J. P., Doerr, Boomer, Balio and Lawton, JJ.