Hewlett v. Roman

237 A.D.2d 288, 655 N.Y.S.2d 413, 1997 N.Y. App. Div. LEXIS 2185

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 3, 1997
• Status: Published

Opinion

In a child visitation proceeding pursuant to Family Court Act article 6, the mother appeals from (1) an order of the Family Court, Suffolk County (Kent, J.), dated May 17, 1996, which denied her motion to dismiss the petition, and (2) an order of the same court, dated November 13, 1996, which denied her motion for reargument.

Ordered that the appeal from the order dated November 13, 1996, is dismissed, as no appeal lies from an order denying re-argument; and it is further,

Ordered that the order dated May 17, 1996, is reversed, on the law, and the proceeding is dismissed; and it is further,

Ordered that the appellant is awarded one bill of costs.

Contrary to the Family Court’s determination, the mother’s motion to dismiss the father’s visitation proceeding should have been granted. The Family Court lacked subject matter jurisdiction to entertain the proceeding pursuant to the relevant provisions of the Uniform Child Custody Jurisdiction Act (see, Domestic Relations Law § 75-d). Specifically, jurisdiction was negated because New York had not been the child’s home State within six months prior to the commencement of the proceeding (see, Domestic Relations Law § 75-d [1] [a]), and there was no showing that substantial evidence concerning the child’s present or future circumstances was available to the New York court (see, Domestic Relations Law § 75-d [1] [b]).

We note that even if the Family Court had jurisdiction of this matter, we agree with the mother that the exercise of that jurisdiction would be inappropriate because New York is an inconvenient forum for resolution of the issues raised in the proceeding (see, Domestic Relations Law § 75-h). Mangano, P. J., Ritter, Sullivan, Altman and McGinity, JJ., concur.