| Matter of Eisner v Eisner |
| 2007 NY Slip Op 07783 [44 AD3d 1111] |
| October 18, 2007 |
| Appellate Division, Third Department |
| In the Matter of Joseph Eisner, Appellant, v Jennifer Eisner,Respondent. (Proceeding No. 1.) In the Matter of Joseph Eisner, Appellant, v AprilGillen et al., Respondents. (Proceeding No. 2.) |
—[*1] Cappy Weiner, Law Guardian, Kingston.
Cardona, P.J. Appeals from two orders of the Family Court of Ulster County (Mizel, J.),entered May 10, 2006, which dismissed petitioner's applications, in two proceedings pursuant toFamily Ct Act article 6, for an order of custody and/or visitation.
Petitioner in proceeding Nos. 1 and 2 (hereinafter the father) and respondent in proceedingNo. 1 (hereinafter the mother) were married in 1997 and have two children, Jason (born in 1998)and Jeffrey (born in 1999). Pursuant to an August 1999 New York custody order entered uponconsent of the parties, Family Court (Work, J.) awarded custody of Jason to the mother withvisitation to the father. The parties' second child, Jeffrey, was born during the pendency of thatcustody proceeding, and is not mentioned in the 1999 order. In December 2000, the father, thenincarcerated for a family offense against the mother, filed the petition at issue in proceeding No.1 seeking visitation with the children. Numerous other petitions with respect to custody andvisitation were filed by the parents over the next several years, however, they were eitherwithdrawn or dismissed. Nevertheless, no substantive progress was made with respect to theDecember 2000 visitation petition.
The mother moved out of state with the children sometime in 2002 and eventually obtained adivorce decree from a South Carolina court in December 2004, which found that she had been aresident of that state for more than a year. In 2005, a South Carolina court issued an emergencytemporary order of physical custody of the children to respondents in proceeding No. 2, themother's mother and stepfather (hereinafter the grandparents). Pursuant to that order, thegrandparents were permitted to return to their home in New York with the children, but wererequired to appear in South Carolina with the children for any further hearings. The mothercontinues to reside in South Carolina.
Thereafter, the father commenced proceeding No. 2 in New York against the grandparentsseeking custody of the children. Although Family Court had exclusive, continuing jurisdictionbased upon the 1999 child custody determination regarding Jason, it determined the SouthCarolina court to be a more convenient forum for resolution of all pending custody and visitationmatters. Accordingly, Family Court (Mizel, J.) dismissed all pending petitions and deferredjurisdiction to South Carolina resulting in this appeal by the father.[FN*]
Upon review of this record, we find that Family Court reviewed the appropriate factors [*2]and properly exercised its discretion in deferring jurisdiction toSouth Carolina. Domestic Relations Law § 76-a (1) (a) provides that jurisdiction of acustody matter continues until "a court of this state determines that neither the child, the childand one parent, nor the child and a person acting as a parent have a significant connection withthis state and that substantial evidence is no longer available in this state concerning the child'scare, protection, training, and personal relationships." A court may decline to exercise itsjurisdiction if it determines that another forum is more convenient after consideration of relevantfactors, such as, whether domestic violence is an issue, the length of time the children haveresided out of the state, the nature and location of the evidence needed to resolve the litigation,the ability of each state to resolve the matter expeditiously and the familiarity of the court of eachstate with the facts and issues (see Domestic Relations Law § 76-f [2] [a]-[h]).
Here, the children had lived in South Carolina at least since 2003 and, therefore, evidenceregarding their care, well-being and personal relationships is more readily available in SouthCarolina. Although the children returned to New York with their grandparents pursuant to atemporary order of physical custody, there was no transfer of legal custody. Furthermore,according to Family Court's correspondence with the South Carolina court, that proceeding,which is the only proceeding naming all parties herein, is still pending. To that end, the basis forthe emergency temporary physical custody order is not disclosed and any evidence pertaining tothe mother's fitness to retain custody is primarily in South Carolina. Significantly, the final orderissued by the court in South Carolina regarding legal custody will have a direct effect on thefather's petitions herein.
Finally, although Family Court had exclusive continuing jurisdiction over custody of Jason,there is no such custody order in this state pertaining to Jeffrey. Rather, the South Carolina courthas exclusive continuing jurisdiction over Jeffrey given the pending custody matter there. Asnoted by Family Court, "it [would be] a waste of judicial, legal, and parental resources to havetwo courts litigate custody separately over two children in the same family." Inasmuch as there isa sound basis in the record to support Family Court's finding that South Carolina is a moreconvenient forum, the determination will not be disturbed (see Matter of Jenkins v Jenkins, 9 AD3d 633, 635-636 [2004],appeals dismissed 5 NY3d 881 [2005], 6 NY3d 751 [2005]; Matter of Persaud vPersaud, 293 AD2d 480, 480-481 [2002]).
Mercure, Peters, Spain and Carpinello, JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote *: We deem any error in thefather's notice of appeal concerning the date of the orders being appealed as harmless since therewas a timely notice of appeal and no evidence that the error prejudiced respondents (see generally Matter of Leach vSantiago, 20 AD3d 715, 716 n 1 [2005], lv denied 6 NY3d 702 [2005]).