| Matter of Sutton v Sutton |
| 2010 NY Slip Op 05156 [74 AD3d 1838] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of April J. Sutton, Respondent, v Joseph E. Sutton,Appellant. |
—[*1] Mary M. Iocovozzi, Herkimer, for petitioner-respondent. Timothy A. Roulan, Attorney for the Children, Ilion, for Isabella R.S. and AmberJ.S.
Appeal from an order of the Family Court, Herkimer County (Henry A. LaRaia, J.), enteredMay 15, 2009 in a proceeding pursuant to Family Court Act article 6. The order, inter alia,awarded sole custody of the parties' children to petitioner.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent father contends on appeal that Family Court erred in granting thepetition seeking to modify a New York custody order pursuant to which the parties had jointcustody of the parties' twin daughters, and the father had primary physical residence of thechildren in Virginia, where he resides. By the order on appeal, the court awarded petitionermother sole custody of the children, with visitation to the father. The mother resides in NewYork. Contrary to the father's contention, the court did not err in concluding that it retainedjurisdiction over the proceeding pursuant to Domestic Relations Law § 76-a. Although thechildren necessarily resided primarily in Virginia with their father, they visited the mother inNew York several weeks each year. In addition, the children visited regularly with otherrelatives in New York and, shortly before the mother commenced this proceeding, the fatherfiled a petition in the same court in New York seeking to modify child support. Thus, thechildren continued to have a "significant connection with this state" (§ 76-a [1] [a]; see Bjornson v Bjornson, 20 AD3d497 [2005]).
We also reject the father's contention that the court should have dismissed the petition on theground that New York is an inconvenient forum (see Domestic Relations Law §76-f). Although the record does not reflect that the court properly considered the requisitestatutory factors pursuant to section 76-f, we need not remit the matter to Family Court to do sobecause the record is sufficient for us to consider those factors (cf. Schumaker vOpperman, 187 AD2d 1033 [1992]). Upon doing so, we conclude that New York is not aninconvenient forum and that Virginia is not a "more appropriate [*2]forum" (Domestic Relations Law § 76-f [3]). We note inparticular that there was evidence at the hearing that the children were subject to mistreatment bythe father in Virginia (§ 76-f [2] [a]), and there was substantial evidence in this state fromwhich to make a custody determination inasmuch as the children spent a significant amount oftime in New York (§ 76-f [2] [b], [f]). Moreover, psychological evaluations conducted inVirginia were admitted in evidence at the hearing, the attorney for the children traveled toVirginia to meet with the father and other individuals with knowledge of the children, and thecourt was able to conduct a Lincoln hearing with the children in New York. We furthernote that, although the court gave the father permission to conduct depositions of witnesses fromVirginia, the father did not avail himself of that opportunity and, significantly, he also failed toseek the permission of the court to allow witnesses from Virginia "to testify by telephone,audiovisual means, or other electronic means before a designated court or at another location inthat state" (§ 75-j [2]). Moreover, the court was familiar with the case because it hadissued the prior custody order and thus was in a position to decide the custody issueexpeditiously, and no custody petitions had been filed in Virginia (§ 76-f [2] [g], [h]).
We reject the father's contention that the court erred in admitting hearsay statements of thechildren in evidence at the hearing. "It is well settled that there is 'an exception to the hearsayrule in custody cases involving allegations of abuse and neglect of a child, based on theLegislature's intent to protect children from abuse and neglect as evidenced in Family [Court]Act § 1046 (a) (vi)' . . . , where, as here, the statements are corroborated" (Matter of Mateo v Tuttle, 26 AD3d731, 732 [2006]). Finally, contrary to the father's contention, there is ample support in therecord for the court's determination that it is in the best interests of the children to award solecustody to the mother. Present—Centra, J.P., Fahey, Peradotto, Lindley and Pine, JJ.