DECISION AND ORDER ON ORDER TO SHOW CAUSE The above parties are the parents of G.B., born [Redacted], 2012. Despite this and related matters having been pending for less than a year, there is a great deal of procedural history and nuance. Only that which is directly relevant to the within determination will be referenced. On February 8, 2021, the father, J.C., filed a petition seeking custody of G.B. On March 3, 2021, the mother, T.N., filed a writ of habeas corpus. This application was denied. On March 10, 2021, the father filed a family offense petition against the mother. The father’s custody and family offense petitions are currently pending before this Court. On or about February 15, 2021 the mother filed an order to show cause in Bronx County Supreme Court seeking, inter alia, an order of sole custody of the parties’ child G.B., under Index No. XXXXX. It is this Court’s understanding that the mother also sought reappointment of Dr. [Redacted] to conduct a new forensic evaluation as well as the appointment of a lawyer to represent G.B. The father, by his attorney, filed a cross-motion seeking dismissal of the mother’s application, or in the alternative, transferring the matter to Westchester County Supreme Court or remanding the proceedings to Westchester County Family Court for an ultimate determination on the merits. The father also sought an award of sanctions and costs based upon the mother’s frivolous conduct. The matters pending in Bronx County were transferred to Westchester County Family Court by order of the Honorable Patsy Gouldborne. In her Decision and Order dated July 8, 2021, Justice Goldborne states: “This Court finds that New Rochelle Family Court has concurrent jurisdiction over the instant custody dispute, as the Respondent is a resident of Westchester County, specifically the City of New Rochelle, and the subject child has resided with Respondent in New Rochelle, New York. In light of the conflicting affidavits of the Petitioner and Respondent, a hearing is necessary to determine the home state and custody of the subject child. This Court made several attempts to reconfigure its calendar in order to proceed with the hearing in this matter, however, the respective requests for adjournments made by both parties resulted in the dissipation of judicial resources and prevented this matter from proceeding to a hearing. Accordingly, Petitioner’s application for custody, and Respondent’s cross motion for dismissal, along with the supporting papers are appropriately transferred or referred to New Rochelle Family Court, as custody proceedings have commenced in the Family Court, the parties have appeared and engaged in litigating this matter in New Rochelle Family Court. The father’s application for sanctions and costs was denied. Subsequent to counsel making this Court aware of Justice Gouldborne’s Decision and Order, this Court made repeated requests for counsel to take the necessary steps to have the documents in the Bronx County Supreme Court matter made available to New Rochelle Family Court. To date, this Court has not received any documents other than those included with submissions filed in New Rochelle Family Court in connection with the dockets initiated and currently pending before the Undersigned. Until such time as this Court is assured that it has received the full official file from Bronx County Supreme Court, it cannot properly make a determination on the above-referenced petition and motion to dismiss. On October 29, 2021, the father filed an order to show cause for summary judgment. By this application, the father seeks an order: (1) granting summary judgment pursuant to CPLR 3212 on the issue of physical and legal custody of [the subject child] as there are no triable issues of fact; (2) granting summary judgment pursuant to CPLR 3212 and DRL §75-a (7) designating New York as the child’s home state as a matter of law; (3) finding that the subject child has resided in New Rochelle, New York since June 2020 and his best interests are served by continuous residence [there]; and (4) for such other and further relief as this Court may deem just and proper. Despite not having received the official file transfer from Bronx County Supreme Court, the father included with his instant order to show cause the mother’s verified petition and sworn affidavit submitted with her order to show cause filed in Bronx County Supreme Court on or around February 15, 2021. Some of the sworn statements contained therein are relevant to this Court’s determination on the father’s order to show cause. In paragraph three of her petition, the mother stated, “For over the past six months the subject child of these proceedings, G.B., has been a resident of the State of New York and has with the knowledge and consent of the parties, resided with his maternal grandmother [Redacted], his maternal grandfather [Redacted], and his two infant uncles, [Redacted], aged fifteen, and [Redacted], aged ten, at [Redacted], Bronx, New York [Redacted]. New York State is the subject child’s ‘home state’ pursuant to the Uniform Child Custody Jurisdictional Act (Section 75 of the Domestic Relations Law)”. In paragraph five of her petition, the mother states that the parties were married in 2011 in Bronx County in New York State “and were divorced in the Supreme Court of the State of New York in Putnam County pursuant to a judgment of divorce signed by the Hon. James F. Reitz, Justice, on March 3, 2017, in an action entitled [as redacted: Wife v. Husband] under index number XXXXX” with a copy of the judgment annexed to the petition. This Court notes that the mother was the petitioner in that action and determined at that time to commence a matrimonial action in Putnam County, New York. Whether or not the ultimate judgment of divorce set forth a custody and visitation schedule, jurisdiction over custody of the subject child was conferred upon that court by the mother’s commencement of that matrimonial proceeding. In addition, a review of the statewide file in this matter reflects that the father filed a petition for custody in Putnam County Family Court prior to the mother commencing the matrimonial action. During the course of that custody proceeding, a forensic evaluation was ordered in which both parties participated. Based upon this information, Putnam County had jurisdiction over the subject child. In paragraph seven of her petition, the mother lists the subject child’s prior addresses and duration of such residencies. She indicates that from January 2014 through June 2020, the child lived at various addresses in Florida. The mother also indicates that from June 2020 through the present time of filing that petition, the subject child resided in New York, with the maternal grandparents in the Bronx and then alternating between the grandparents in the Bronx and the father in New Rochelle. Based upon the above information provided by the mother, this Court finds that Putnam County had jurisdiction over the subject child in prior proceedings. Although no final order was entered, at the very least, an order for forensics was entered on May 15, 2014 (Reitz, JFC) under a custody docket and based on the resulting report, both parties participated in the evaluation. Subsequent to the proceedings in Putnam County and prior to the instant proceedings in New Rochelle Family Court and recent proceedings in Bronx County Supreme Court, this Court has not been made aware of any orders relating to the custody or visitation of G.B. issued by a court of this state or any other state. Further, the mother states in paragraph ten of her petition, “There has never been and there is not now any order in existence setting forth the specific details of the petitioner and respondent’s custodial arrangement concerning G.B.” Domestic Relations Law §75-a (7) defines “home state” as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding…A period of temporary absence of any of the motioned persons is part of the period.” Such a period of temporary absence contemplates a visit to a relative, an out-of-state camp or educational program, and the like. Both parties appear to agree that G.B. came to New York State in June 2020, despite their being a dispute as to the length of time he lived with his father and his maternal grandparents. Both parents commenced proceedings in New York in February 2021, albeit for different purposes. By that time, G.B. had been living in New York for approximately eight months. Since the commencement of these proceedings, G.B. has continuously resided in New York to the present. During the pending proceedings before this Court, the mother has requested a forensic custody evaluation. That application is considered in conjunction with the mother’s sworn statements referenced above. For the mother to now argue that New York should not be deemed the child’s home state is in diametric opposition to her own prior sworn statements. Justice Gouldborne’s decision indicated that a hearing should be held on the issue of the child’s home state. However, the matter is now pending before this Court, and this Court finds that it has more than sufficient information before it to find that New York is the home state. To hold a hearing with the above information already before this Court would be contrary to judicial economy and would only further delay a resolution for the parties on the ultimate issues. Even if, arguendo, this Court did not have sufficient information to determine that New York is the child’s home state, this Court could find that after approximately eighteen months of G.B. residing in New York, that “there is within the jurisdiction of the court substantial evidence concerning the child’s present or future care, protection, training, and personal relationships” (Vanneck v. Vanneck, 49 NY2d 602, 609 [1980] [internal citation omitted] [emphasis added]). Further, “[t]he absence of [a child] from a State for 18 months is a strong indicator that there is no longer optimum access to relevant evidence” in the child’s prior state of residence (Steinman v. Steinman, 80 AD2d 892, 893 [2d Dept 1981] [internal quotation and citation omitted], appeal dismissed 54 NY2d 641 [1981]). For the reasons set forth above, this Court finds that based upon undisputed facts and as a matter of law, New York State is the home state of G.B. for the purpose of the instant custody proceeding. The father’s remaining applications seek an order of summary judgment on the issue of physical and legal custody of G.B. and a finding that G.B. has resided in New Rochelle, New York since June 2020 and his best interests are served by continuous residence there. Motions for summary judgment are governed by CPLR 3212. Subsection (b) provides, in relevant part: “A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit.” Summary judgment is a drastic remedy that should “only be granted … when it has been clearly ascertained upon all the papers and proof submitted that there are no triable issues of fact outstanding” for the Court to decide (Matter of Suffolk County Dept. of Social Servs. v. James M., 83 NY2d 178, 182 [1994]). “The burden on a motion for summary judgment is upon the movant who is required to set forth a prima facie showing of its entitlement to summary judgment regardless of the sufficiency of the opposing papers” (Matter of Elizeo C., 19 Misc3d 1112 [A] [Fam Ct, Kings County 2007]). There are unresolved issues of fact in this matter, evidenced in part by the need for the forensic evaluation ordered in this matter. When issues of fact exist, an evidentiary hearing is required (see Boyke v. Charles, 125 AD3d 854 [2d Dept 2015]). This is particularly true in a matter such as this regarding an initial custody determination. For these reasons, this Court cannot grant summary judgment on the ultimate issue of physical and legal custody, nor can it make a summary determination that G.B. has resided in New Rochelle since June 2020 and his best interests are served by continuous residence there. While Justice Gouldborne has determined that these issues should be resolved in New Rochelle Family Court, there are issues of disputed facts regarding the exact timeline of events that are not appropriate for a determination on an application for summary judgment and can only be determined after a hearing. ACCORDINGLY, IT IS HEREBY ADJUDGED that New York State is the home state of G.B.; AND IT IS THEREFORE ORDERED that New York State is the home state of G.B.; and it is further ORDERED that the remainder of the father’s order to show cause is denied; and it is further ORDERED that any relief not specifically granted herein is hereby denied. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN THIRTY DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. Dated: January 18, 2022
