MATTER OF MB II v. MB

Jeffrey S. Schecter for petitioner. Christine L. Adamowicz for respondent.

Ellen Pober Rittberg, Law Guardian. OPINION OF THE COURT

RICHARD S. LAWRENCE, J. This is a motion by the petitioner father to dismiss the respondent/applicant mother's instant petition for modification § 76-a entitled "Exclusive, continuing jurisdiction" provides that once "a court of this state * * * has made a child custody determination," then this state "has exclusive, continuing jurisdiction over the determination" of any future application regarding child custody, until:

"(a) a court of this state determines that neither the child, the child and one parent, nor the child and a person acting as a 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."

This court has exclusive continuing jurisdiction as the parties were residents of Nassau County and received a judgment of divorce from this County on March 19, 1998 from the Nassau County Supreme Court by Justice Marvin D. Segal. Thereafter, additional proceedings were brought in this court to modify the parties' agreement as to custody and visitation, pursuant to certain terms of the stipulation of settlement and amended stipulation of settlement which were incorporated but not merged in the judgment of divorce. This resulted in a consent order issued by this court on February 22, 2000. Accordingly, the petition at bar initially was properly brought before this court. Having determined that this court has jurisdiction pursuant to statute, it must now determine whether the child and his father, with whom he resides, have "a significant connection" with New York and that "substantial evidence is no longer available" in New York concerning the child's care, etc. It is undisputed that the petitioner and the subject child have resided in New Jersey continually for a period of three years, and that the child has been attending school in New Jersey and has his friends there. Even taking the respondent's allegations of New York State "contacts" at face value, the contacts alleged between the child and New York State are de minimis at best and virtually nonexistent at worst. The respondent's allegations regarding contacts of the child with New York State are as follows: 1. approximately seven months ago the child attended a communion of a cousin in East Rockaway; 2. various family members of the respondent live in Nassau County (there are no allegations whatsoever that there is any relationship or contact between the child and any of these relatives); promptly commenced in the other jurisdiction (Domestic Relations Law § 76-f [3]). However, this court need not reach the issue of inconvenient forum, as it has made its determination in accordance with Domestic Relations Law § 76-a. The respondent alleges that since New Jersey has not yet enacted the UCCJEA, this court therefore must accept jurisdiction as the comparable statute does not exist in the sister state. Respondent's reliance upon this argument is misplaced, as the UCCJEA nowhere states that the other state which could accept jurisdiction must have had the new statute enacted. All that the UCCJEA requires is that another state could be a proper state for jurisdiction (Domestic Relations Law § 76 [1] [d]). Since the New Jersey statute is still its version of the UCCJA, then the UCCJA will govern in any New Jersey action that might be commenced by this respondent. Respondent has submitted to this court a surreply affidavit. Such pleadings are not recognized by the CPLR nor were they contained in this court's motion schedule agreed to by the parties before the court on August 28, 2002. Accordingly, this court has not considered the surreply in rendering its decision. However, even if this court were to have considered that additional affirmation, this court's decision would have been the same. Accordingly, the petitioner's instant motion is granted and the petition is dismissed.