DECISION & ORDER UPON MOTION TO DISMISS The parties are divorced and have triplets in common, E.P., O.P., and Z.P. E.P. resides with his father, Brian P. (hereinafter “Father” or “Mr. P.”), while O.P and Z.P. live with their mother, Haydee U. (hereainafter “Mother” or “Ms. U.”). On August 25, 2020, Ms. U. filed a modification petition against Mr. P. In her petition, she sought to modify the parties’ child support order because she alleged that Z.P. was residing with her. On September 16, 2020, Ms. U. filed another modification petition against Mr. P. In her petition, she sought to modify the parties’ child support order because she alleged that O.P. was also residing with her. On November 13, 2020, Ms. U. filed yet another a modification petition against Mr. P. In her petition, she sought to terminate her child support obligation for E.P. because she alleged that he graduated from High School and is working full-time. On January 15, 2021, Ms. U. filed a support petition against Mr. P. seeking his contribution towards Z.P.’s and O.P. ‘s support. On April 20, 2021, Mr. P. filed a motion seeking to dismiss all of Ms. U.’s petitions. On May 11, 2021, Ms. U. filed opposition papers. On May 19, 2021, the matter was marked submit. The Court’s decision follows: DISCUSSION MOTION TO DISMISS A party to a family court action may file a motion to dismiss for failure to state a cause of action pursuant to New York Civil Practice Law and Rules (hereinafter “CPLR”) §3211(a)(7). See N.Y. FAM. CT. ACT §165(a) (McKinney’s 2021) (FCA adopts and applies CPLR where FCA is silent); see also See N.Y. C.P.L.R. §3211(a)(7) (McKinney’s 2021). In its analysis, the Court must construe the petition liberally to determine whether, within the pleading’s four corners, there exists a cognizable cause of action. See Harris v. Barbera, 96 A.D.3d 904, 905 (2d Dep’t 2012); see also Martin v. Liberty Mutual Ins. Co., 92 A.D.3d 729, 730 (2d Dep’t 2012); Ruffino v. New York City Transit Auth., 55 A.D.3d 817, 818 (2d Dep’t 2008). To that end, the Court must accept all alleged facts within the pleadings to be true. See Martin, 92 A.D.3d at 730; see also Young v. Campbell, 87 A.D.3d 692, 693 (2d Dep’t 2011). In other words, a motion to dismiss for failure to state a cause of action may be granted only where, accepting the petition’s alleged facts as true, the moving papers establish conclusively that there is no claim for relief stated within the petition. See N.Y. C.P.L.R. §3221(a)(7) (McKinney’s 2021); see also Noble v. Graham, 8 A.D.3d 641, 641 (2d Dep’t 2004); Fields v. Leeponis, 95 A.D.2d 822, 822 (2d Dep’t 1983). Moreover, when seeking a modification, a petitioner has the burden of proving that a substantial change in circumstances has occurred. See N.Y. FAM. CT. ACT §451 (McKinney’s 2021); see also Funaro v. Kudrick, 128 A.D.3d 695, 696 (2d Dep’t 2015); see also Radday v. McLoughlin, 106 A.D.3d 1015, 1015-16 (2d Dep’t 2013); see also Kasun v. Peluo, 82 A.D.3d 769, 771 (2d Dep’t 2011); Ish-Shalom v. Wittman, 81 A.D.3d 648, 648 (2d Dep’t 2011); Aranova v. Aranova, 77 A.D.3d 740, 40 (2d Dep’t 2010). On March 1, 2010, the parties were divorced. Ms. U. was deemed to be the primary custodial parent of the parties’ children and Mr. P. was ordered to pay child support. On April 3, 2019, after the children had begun to live with him, Mr. P. brought a support petition against Ms. U. On July 23, 2019, the Court issued a consent order, directing Ms. U. to pay child support to Mr. P. There is no dispute that since that time, Z.P. and O.P. moved to Pennsylvania to live with their mother.1 A change in custody is clearly a substantial change in circumstances warranting a termination of Ms. U.’s obligation to pay child support to Mr. P. for the parties’ daughters, and triggering Mr. P.’s obligation to pay child support to Ms. U. for the parties’ daughters. Mr. P. maintains that he should not have to contribute towards nineteen year old Z.P.’s and O.P.’s support since the age of emancipation in Pennsylvania is eighteen. Mr. P.’s ipse dixit argument, that Pennsylvania law controls because that is the state in which the children now reside, is unpersuasive. The Court knows of no statute or case law, and Mr. P. has provided none within his papers, to substantiate such an assertion. A state issuing an order loses continuing, exclusive jurisdiction where all of the parties and children no longer reside there, or all of the parties file their written consent for another state to assume such jurisdiction. See 28 U.S.C.S. §1738B(d) (2021); see also Spencer v. Spencer, 10 N.Y.3d 60, 66 (2008) (“[T]he state issuing a child support order retains continuing, exclusive jurisdiction…so long as an individual contestant continues to reside in the issuing state.”); Zagarino v. McLean, 154 A.D.3d 769, 769 (2d Dep’t 2017); Batesole-Harmer v. Batesole, 28 A.D.3d 551, 551 (2d Dep’t 2006); Hutchison v. Pirro, 11 A.D.3d 465, 466 (2d Dep’t 2004). Mr. P. still resides in New York; so does his son, E.P. No proof was provided establishing that all of the parties consented in writing to Pennsylvania jurisdiction. Thus, New York maintains continuing, exclusive jurisdiction over the matter. See generally 28 U.S.C.S. §1738B (2021) (Full Faith and Credit for Child Support Orders Act); 42 U.S.C. §666 (2021) (Uniform Interstate Family Support Act);2 N.Y. FAM. CT. ACT §580-205 (McKinney’s 2021) (setting forth when New York may and may not exercise continuing, exclusive jurisdiction to modify support orders). Moreover, since the parties’ divorce judgment, inclusive of child support was issued in New York, New York law governs the parties. See e.g. Spencer, 10 N.Y.3d at 66 (finding Connecticut law controlled since father resided there, where child support order was issued); see also Helmeyer v. Setzer, 173 A.D.3d 740, 742-43 (2d Dep’t 2019) (in custody case, New York not divested of exclusive, continuing jurisdiction where child and one parent no longer lived in state); Pauls v. Neathery, 149 A.D.3d 950, 952 (2d Dep’t 2017) (affirming New York enforcement disposition; no proof that issuing state, New York, lost its continuing, exclusive jurisdiction). Compare Gowda v. Reddy, 105 A.D.3d 957, (2d Dep’t 2013) (finding New York authority to modify Pennsylvania order, registered in New York, where parties no longer resided in Pennsylvania, mother did not reside in New York, but father did). Accordingly, the triplets are entitled to child support until they turn twenty-one years old, or emancipate themselves through marriage, military service, a job that causes them to be self-supporting, or they constructively emancipate by withdrawing from parental supervision and control. See Thomas B. v. Lydia. D., 69 A.D.3d 24, 27-9 (1st Dep’t 2009); see also Bogin v. Goodrich, 265 A.D.2d 779, 781 (3d Dep’t 1999) (citing cases). Notwithstanding, New York considers the best interests of children to be paramount, and routinely applies that standard in family law proceedings. See e.g. N.Y. FAM. CT. ACT §§418(a), 532(a) (McKinney’s 2021) (genetic marker test ordered only if in best interests of child); In the Matter of Shondel J. v. Mark D., 853 N.E.2d 610, 611-13 (N.Y. 2006) (order of filiation and child support entered based upon best interests of child); Matter of Quida H., 127 A.D.3d 971, 971 (2d Dep’t 2015) (best interests of child applied in guardianship proceedings); Milton v. Tormey-Milton, 133 A.D.3d 857, 858 (2d Dep’t 2015) (“A determination of child support must include an evaluation of the means and responsibilities of both parents and the needs and best interests of the child); Matter of Tianna R., 2014 N.Y. Slip. Op. 1169, at * 2 (2d Dep’t Feb. 19, 2014) (best interests of child applied in paternity and child support proceedings); Retamozzo v. Moyer, 91 A.D.3d 957, 957 (2d Dep’t 2012) (best interests of child applied in relocation case); Ekstra v. Ekstra, 78 A.D.3d 990, 990 (2d Dep’t 2010) (best interests of child applied in custody proceedings); Matter of Carlena B., 61 A.D.3d 752, 752 (2d Dep’t 2009) (best interests of child applied in abuse and neglect proceedings); Matter of Aliyanna M., 58 A.D.3d 853, 854 (2d Dep’t 2009) (best interests of child applied in termination of parental rights proceedings); Gina L. v. David W., 34 A.D.3d 810, 811 (2d Dep’t 2006) (stating that paternity proceeding “turn[ed] exclusively on the best interests of the child”); Sarah S. v. James T., 299 A.D.2d 785, 785 (3d Dep’t 2002) (affirming finding that best interests of child required application of doctrine of equitable estoppel to preclude respondent from denying paternity); Valenza v. Valenza, 143 A.D.2d 860, 862 (2d Dep’t 1988) (best interests of child applied in visitation disputes). Thus, it is counterintuitive to think that the law would endorse dispossessing children of their right to court-ordered child support simply because they moved to a state where the emancipation age is lower. Accordingly, the Court finds that Ms. U. has sufficiently set forth causes of action within her 20D, 20E and F-00692-21 petitions. Although Mr. P. sought to dismiss all of Ms. U. ‘s petitions, his papers fail to address Ms. U.’s 20F petition in which she maintains that the parties’ son, Edward, is economically emancipated. The Court finds that Ms. U.’s allegations that E.P.is a high school graduate and engaged in “fulltime paid employment” are enough to proffer that a substantial change in circumstances has occurred. ADJUDGED, that accepting all alleged facts within the pleadings to be true, Ms. U. has sufficiently set forth causes of action within her petitions; and it is therefore, ORDERED, that Mr. P. ‘s motion to dismiss is hereby denied in its entirety; and it is further, ORDERED, that the parties shall appear for a virtual conference on June 14, 2021 at 2:00 P.M. to address the pending petitions under Nassau County Family Court Docket Numbers F-2901-19/20D, 20E, 20F & F-00692-21. This constitutes the decision, opinion and order of the Court. Check applicable box: Order mailed on [specify date(s) and to whom mailed]: ____ Order received in court on [specify date(s) and to whom given]:____ Dated: May 19, 2021
