IN RE SARA ASHTON MCK., pet-ap, -AGAINST- SAMUEL BODE M., res-res

11057. IN RE SARA ASHTON MCK., pet-ap, -AGAINST- SAMUEL BODE M., res-res — Amed Marzano & Sediva PLLC, New York (Naved Amed of counsel), for ap — Barbara J. Schaffer, New York, (Jill M. Zuccardy of counsel), for res — Order, Family Court, New York County (Fiordaliza A. Rodriguez, Referee), entered on or about May 30, 2013, which granted respondent father’s motion to dismiss the mother’s custody petition, unanimously reversed, on the law, without costs, the motion denied, the petition reinstated, and the matter remanded for further proceedings consistent herewith.

The Family Court properly found that New York is the child’s home state, based “on the literal construction of the statute,” since the mother gave birth on February 23, 2013, in New York and the child lived in New York continuously until the time of the mother’s filing of her custody petition, two days later. However, the court erred in declining to exercise jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Domestic Relations Law art 5—A) to determine the mother’s petition for initial custody of the child. The California court did not have “jurisdiction