DECISION AND ORDER PURSUANT TO SEC. 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 35 DAYS AFTER SERVICE BY A PARTY OR LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST. SHIM, J.: The following papers were reviewed on this Order to Show Cause filed by Respondent/Petitioner, Darah D., seeking, inter alia, COVID-19 testing of the subject child and interim parenting time, and Notice of Cross-Motion filed by Petitioner/Respondent, Adam N., requesting, inter alia, that this Court transfer this matter to California due to this Court no longer having exclusive, continuing jurisdiction or, in the alternative, transfer this matter to California on the basis of forum non conveniens: 1) Order to Show Cause, Affirmation in Support, Affidavit in Support, and Exhibits A — D by Darah D. 2) Notice of Cross-Motion, Affirmation in Opposition to Order to Show Cause and in Support of Cross-Motion, Affidavit in Opposition to Order to Show Cause and in Support of Cross-Motion, and Exhibits A — I by Adam N.1 3) Affirmation in Opposition to Cross-Motion, Affidavit in Opposition to Cross-Motion, and Exhibits A — B by Darah D. 4) Reply Affirmation to Cross-Motion, Reply Affidavit to Cross-Motion, and Exhibits A — D by Adam N. The Court received responsive papers to the Order to Show Cause on the issue of interim visits by the Attorney for the Child, but no responsive papers to the Cross-Motion. However, the Attorney for the Child verbally noted on the record during oral arguments on May 3, 2021 that she takes no position regarding the Cross-Motion. Upon review of the foregoing papers and the record before the Court, it is ordered that Adam N.’s Cross-Motion is granted to the extent that this Court declines to exercise jurisdiction based upon its determination that New York is an inconvenient forum and that California is a more appropriate forum. I. Procedural History Adam N. and Darah D. are the parents of one child, Evan N. (DOB: 06/25/2010). As pertinent here, on May 1, 2013, the parties were divorced in Miami, Florida pursuant to a Judgment of Divorce (hereinafter “the Judgment”), which incorporated, but did not merge, the parties’ stipulation of settlement. Pursuant to the so-ordered Stipulation of Settlement (hereinafter “the Stipulation”), the parties agreed to an order of joint physical and legal custody. In late 2013, Darah D. relocated with the subject child to New York City over Adam N.’s objection. Thereafter, Darah D. filed a petition in Miami, Florida to relocate, which was denied by the Circuit Court of the 11th Judicial Circuit, Miami, Florida (hereinafter “Circuit Court”). However, because Darah D. had already relocated with the subject child to New York, the Circuit Court modified the Judgment and ordered, inter alia, the subject child to reside with Adam N. during the school year and with Darah D. during the summer months. In 2014, Adam N. relocated to California and as a result, the parties agreed to again modify the Judgment. However, Darah D. later informed Adam N. that she would not comply with the terms of this modified agreement. As a result of Darah D.’s failure to comply with their agreement, Adam N. filed an emergency motion in the Circuit Court to modify the Judgment, in which Adam N. sought sole custody of the subject child. The Circuit Court modified the Judgment, but denied the relief requested by Adam N. Instead, the Circuit Court permitted the subject child to remain in New York with Darah D. In February 2015, the parties entered into a mediated settlement agreement in the Circuit Court, which again modified the Judgment.2 Pursuant to the settlement agreement, Darah D. was awarded primary physical custody in which she was permitted to remain in New York with the subject child, but the agreement granted Adam N. parenting time with the subject child in California during all school breaks. For a number of years, the parties abided by the terms of this agreement. On February 6, 2019, in the New York County Family Court, Darah D. filed a modification and relocation petition pursuant to Docket No. V-00564-19/19A3, in which she sought to relocate to Norway with the subject child. However, due to Darah D.’s failure to appear, the Honorable Emily M. Olshansky of the New York County Family Court dismissed her petition. On July 23, 2019, while the subject child was in Adam N.’s care for summer break, Adam N. filed a modification petition pursuant to Docket No. V-00564-19/19B seeking sole custody of the subject child. Adam N. alleged that Darah D. had already moved to Norway and that it was her intent to permanently relocate the subject child there as well. On August 12, 2019, one day before Darah D. was scheduled to begin a three-week vacation with the subject child in Norway, Adam N. informed Darah D. that he would not be returning the subject child to her and intended to keep the subject child in California. Thereafter, as Darah D. had planned to get married in Norway with the subject child in attendance, Darah D. filed a petition seeking a writ of habeas corpus pursuant to Docket No. V-09979-19, heard before the Honorable Machelle Sweeting of the New York County Family Court. The Honorable Sweeting ordered Adam N. to return the subject child to Darah D. to attend Darah D.’s upcoming wedding ceremony in Norway, but further ordered that the subject child was “not to be relocated without the express approval of an order from a court in the United States.” On September 12, 2019, following her return to New York from the three-week vacation in Norway, Darah D. filed another modification and relocation petition pursuant to Docket No. V-00564-19/19C. During this time period, Darah D. and the subject child moved in with Darah D.’s friend in New York City and on December 16, 2019, Darah D. signed a six-month lease for an Air BnB in New York. On October 17, 2019, Adam N. filed an enforcement petition pursuant to Docket No. V-00564-19/19D. Then, on October 25, 2019, Adam N. filed an Order to Show Cause for contempt pursuant to this docket, which was granted to the extent that the Honorable Olshansky ordered Adam N. to have additional parenting time with the subject child. On October 25, 2019, the Honorable Olshansky scheduled the cross-modification petitions for trial, which was set to commence on December 18, 2019 and continue on March 12, 2020, March 13, 2020, and March 20, 2020. On December 18, 2019, Adam N. filed an Order to Show Cause seeking a temporary emergency change in custody pending the final determination of the cross-modification petitions. The Order to Show Cause was adjourned to the previously scheduled date of March 12, 2020, for a combined hearing on the cross-modification petitions and Adam N.’s Order to Show Cause. The Honorable Olshansky commenced the combined hearing and on March 13, 2020, the Honorable Olshanky granted Adam N.’s Order to Show Cause for a temporary change in physical and legal custody pending the conclusion of the hearing on the cross-modification petitions. The hearing was adjourned to the previously scheduled date of March 20, 2020. As a result of this decision, the subject child relocated to California to reside with Adam N. and Darah D. moved to Norway. The hearing did not continue on March 20, 2020 due to this Court’s suspension of in-person operations as a result of the COVID-19 pandemic. From March 20, 2020 through March 2021, the Court conducted virtual conferences in an effort to resolve this matter, but the parties were unable to reach a resolution. During this time period, the subject child resided with Adam N. in California and Darah D. resided in Norway. During this same period of time, Darah D. visited with the child on two occasions in the State of Georgia and on one occasion in the State of California. In March 2021, the Honorable Olshansky retired from the New York County Family Court and this matter was transferred to this jurist. On March 23, 2021, a virtual settlement conference was held and upon application of the parties, a mistrial was declared. The matter was adjourned for further proceedings. Thereafter, on March 30, 2021, counsel for Adam N. filed a cross-motion, requesting that this Court transfer this matter to California based on his claim that this Court lost exclusive, continuing jurisdiction pursuant to Domestic Relations Law §76-a (1) as neither the parties nor the subject child reside in New York; or, in the alternative, requesting that this Court transfer this matter to California based on forum non conveniens, as California is the more appropriate forum pursuant to Domestic Relations Law §76-f. On April 23, 2021, counsel for Darah D. filed papers in opposition. The Court received no responsive papers to the cross-motion from the Attorney for the Child but during oral arguments on May 3, 2021, she took no position regarding the relief sought in the cross-motion. The above-referenced papers fully set forth the parties’ respective positions and arguments. This Court has read and considered these papers, which speak for themselves and will not be summarized herein, as well as oral arguments made on May 3, 2021. II. Decision New York State has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), as codified in Article 5-A of the Domestic Relations Law. Michael McC. v. Manuela A., 48 A.D.3d 91, 848 N.Y.S.2d 147 (1st Dept. 2007). New York’s adoption of the UCCJEA was, “among other things, designed to eliminate any jurisdictional competition between courts and strengthen jurisdictional certainty in child custody proceedings.” Montanez v. Tompkinson, 167 A.D.3d 616, 90 N.Y.S.3d 62 (2d Dept. 2018); Stocker v. Sheehan 13 A.D.3d 1, 786 N.Y.S.2d 126 (1st Dept. 2004). “Specifically, section 76 of the DRL forms the foundation of the UCCJEA and governs virtually every custody proceeding…. [U]nder New York’s UCCJEA, a New York Court has jurisdiction to modify a child custody determination made by a court of another state if this state is the ‘home state’ of child. Moreover, the New York court continues to maintain exclusive jurisdiction until a determination is made that neither the child, nor the child and one parent have a significant connection with this state, or where the court determines that neither the child, and neither of the child’s parent’s reside in the state.” Michael McC., 48 A.D.3d at 95; Domestic Relations Law §76-a (1)(a)-(b). This Court’s exclusive, continuing jurisdiction continues uninterrupted unless and until one of the two aforementioned contingencies occurs. See DRL §76-a (1). “In determining whether either of these two contingencies apply to a [modification] proceeding, the question is whether the Court had jurisdiction over the proceeding at the time the petition was filed.” Matter of J.N. v. S.S.F., 70 Misc.3d 1075, 141 N.Y.S.3d 246 (Fam. Ct. 2020); Guzman v. Guzman, 92 A.D.3d 679, 938 N.Y.S.2d 195 (2d Dept. 2012); Blerim M. v. Racquel M., 41 A.D.3d 306, 839 N.Y.S.2d 57 (1st Dept. 2007); see also Prof. Merril Sobie, 2012 Supp. Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, DRL §76-b (the petition filing date controls when determining whether there is jurisdiction under the UCCJEA). If it is determined that a court had jurisdiction over a proceeding at the time the petition was filed, then that court may not be divested of its continuing, exclusive jurisdiction prior to the conclusion of the proceeding. See Matter of J.N., 70 Misc.3d at 1075; see also See Guzman, 92 A.D.3d at 681. In this case, this Court finds that neither of the two contingencies set forth in Domestic Relations Law §76-a (1) has occurred with respect to the cross-modification petitions and Adam N.’s enforcement petition. As to the “significant connections” contingency set forth in Domestic Relations Law §76-a (1)(a), at the time the enforcement petition and cross-modification petitions were filed — on July 23, 2019, on September 12, 2019, and on October 17, 2019 respectively — the subject child and Darah D. had a significant connection to New York, in that it was the subject child’s primary residence pursuant to the 2015 mediated settlement agreement, and had been the subject child’s primary residence for approximately four (4) years prior. Accordingly, Darah D. and the subject child had a significant connection with New York when all three petitions were filed. See Matter of J.N., 70 Misc.3d at 1083. Further, though Adam N. contends that this Court has been divested of its exclusive, continuing jurisdiction pursuant to Domestic Relations Law §76-a (1)(b) due to neither party nor the subject child residing in New York, Adam N. and the subject child’s relocation of their residence to California and Darah D.’s relocation of her residence to Norway did not divest this Court of jurisdiction over the enforcement or cross-modification petitions, as the relocations of the parties and the subject child occurred in March of 2020, well after the petitions were filed. See Guzman, 92 A.D.3d at 681 (court erred in dismissing mother’s modification petition for lack of jurisdiction where mother commenced modification proceeding in New York but before any determination could be made, father and child relocated to Florida, as father and subject child resided in New York at the time modification proceeding was commenced); see also Matter of J.N., 70 Misc.3d at 1075. Accordingly, contrary to Adam N.’s contentions, because this Court had jurisdiction over the enforcement and cross-modification petitions at the commencement of the proceedings, this Court has not been divested of its continuing and exclusive jurisdiction with respect to the petitions. See UCCJEA §202, comment, (2019) (“Jurisdiction attaches at the commencement of a proceeding. If State A had jurisdiction under this section at the time a modification proceeding was commenced there, it would not be lost by all parties moving out of the State prior to the conclusion of proceeding.”). However, “[a] court with continuing, exclusive jurisdiction may nonetheless decline to exercise such jurisdiction ‘if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.’” Blerim M., 41 A.D.3d at 310. “The ‘significant connection and substantial evidence language’ is to be contrasted with that of the act’s forum non conveniens provision which authorizes a court having jurisdiction to decline to exercise it based on various factors, including whether another state has a ‘closer connection’ with the child and the contestants, and whether substantial evidence is ‘more readily available’ concerning the child’s present or future care.” William L. v. Michele P., 99 Misc. 2d 346, 416 N.Y.S.2d 477 (Fam. Ct. 1979). Pursuant to Domestic Relations Law §76-f, before determining whether it is an inconvenient forum, a court must consider whether it is appropriate for a court of another state to exercise jurisdiction and, for this purpose, shall consider all of the relevant factors, including: (a) whether domestic violence or mistreatment or abuse of a child has occurred and is likely to continue in the future and which state could best protect the parties and the child; (b) the length of time the child has resided outside this state; (c) the distance between the court in this state and the court in the state that would assume jurisdiction; (d) the relative financial circumstances of the parties; (e) any agreement of the parties as to which state should assume jurisdiction; (f) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child; (g) the ability of the court of each state to decide the issue expeditiously; and (h) the familiarity of the court of each state with the facts and issues in the pending litigation. If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state. DRL §76-f (3). Further, “the court must allow the parties to submit information regarding these factors before determining that New York is an inconvenient forum.” Rey v. Spinetta, 8 A.D.3d 393, 777 N.Y.S.2d 746 (2d Dept. 2004). “A determination as to whether a court is an inconvenient forum is left to the sound discretion of the trial court after consideration of the eight enumerated factors.” Sara Ashton McK. v. Samuel Bode M., 111 A.D.3d 474, 974 N.Y.S.2d 434 (1st Dept. 2013). Here, both parties had the opportunity to submit information regarding the Domestic Relations Law §76-f inconvenient forum factors, and both parties addressed the relevant factors in their respective moving papers. Based on their respective moving papers, both parties agree that factor (a) and (e) are inapplicable in this case and as such, this Court does not consider these two enumerated factors in this decision. This Court first considers factor (b) of Domestic Relations Law §76-f, “the length of time the child has resided outside this state.” It is uncontroverted that the subject child has resided outside of New York, and has resided with Adam N. in California, for approximately one (1) year. The subject child relocated to California in March of 2020 as a result of the Honorable Olshansky’s award of temporary custody to Adam N. on March 13, 2020. Next, this Court considers factor (c), “the distance between the court in this state and the court in the state that would assume jurisdiction.” While the distance between the court in California and the New York County Family Court is considerable, Darah D. would be required to travel a considerable distance pursuant to either outcome, as she is currently residing in Norway. Darah D.’s modification petition, in which she seeks a relocation of the subject child to Norway, necessitates evidence and witnesses from Norway — it would not be more expeditious for Darah D.’s witnesses to travel to New York versus California, nor would it be more expeditious for Darah D’s witnesses to travel to California versus New York. While Darah D. relies on the availability of virtual proceedings in New York to support her contention that it would be more expeditious to appear for a virtual hearing in New York, this reliance is not persuasive — pursuant to California’s Family Court Code §3411,4 arrangements can be made to have Darah D.’s out-of-state witnesses testify via telephone, audiovisual, or other electronic means, which would have the same effect as proceeding virtually in New York. To the contrary, Adam N.’s modification petition, in which he seeks to modify the 2015 mediated settlement agreement so as to award him sole physical custody of the subject child, necessitates evidence and witnesses from California. It would be certainly more expeditious for Adam N. and his witnesses to travel to the court within their own state as opposed to the New York County Family Court. Similarly to the analysis of factor (c), this Court finds that in consideration of factor (d), “the relative financial circumstances of the parties,” Darah D. would be required to expend significant financial resources whether this matter remained in New York or was heard in California, as Darah D. would be required to travel internationally. Darah D.’s reliance on the availability of virtual proceedings in New York is again misplaced, as virtual court was implemented solely due to the emergent nature of the COVID-19 pandemic, and this Court will not remain a virtual court indefinitely. This Court next turns to factor (f), “the nature and location of the evidence required to resolve the pending litigation, including testimony of the child.” To determine in which State — California or New York — the evidence concerning the pending litigation is more readily available requires a review of the parties’ pleadings. The substance of Adam N.’s allegations in his modification petition is that he should be awarded sole physical custody of the subject child, as a relocation of the subject child to Norway would not be in the subject child’s best interests. Instead, he alleges that he has a stable family unit, is close to “some of the best schools in California”, and the subject child has developed relationships with his extended family, including aunts, cousins, uncles, his step-mother, and grandparents. The substance of Darah D.’s allegations in her relocation and modification petition is that she wishes to start a new life for herself and the subject child in Norway, and that she has a suitable residence and life there. She also alleges that she has always been the primary caretaker of the subject child and the subject child has no connections to California. Both parties allege issues regarding co-parenting and communication, specifically in their telephone contacts, or the lack thereof, with one another. Further, as aforementioned in this Court’s analysis of factor (b), it is uncontroverted that the subject child has resided in California since March of 2020. Based on the review of the parties’ pleadings and current posture of this case, it is clear that the sources of evidence concerning the pending litigation are more readily available in California. This Court would need to hear and review testimony regarding the subject child’s present and future care to determine whether Adam N. has established a change in circumstances sufficient to warrant modification of the custody order, and because the subject child has resided in California since March of 2020, the sources of evidence are located there. See P.M. v. M.G., 65 Misc.3d 1218(A), 119 N.Y.S.3d 391 (Fam. Ct. Westchester Cnty. 2019). Further, the sources of evidence with respect to the issues raised by Adam N. regarding his quality of life — his home, the schools, the subject child’s relationships with extended family members and friends — are also located in California. In contrast, the sources of evidence with respect to the issues raised in Darah D.’s modification and relocation petition are most likely to be available in Norway and not New York. The Court may similarly need to hear and review testimony regarding the subject child’s present and future care in Norway to determine whether it would be in the subject child’s best interests to relocate to Norway with Darah D. Accordingly, the substantial, relevant evidence pertaining to the subject child’s care, protection, education and personal relationships is in California, not New York. See Sanchez v. Johnson, 189 A.D.3d 1254, 137 N.Y.S.3d 69 (2d Dept. 2020) (finding that Family Court’s determination granting motion to dismiss father’s petition on ground that Florida Court would be more appropriate forum was proper; although the subject child resided in New York from 2013-2015 and subsequently moved to Florida in 2016, since 2016, the “substantial, relevant evidence pertaining to the child’s care, protection, education and personal relationships [was] in Florida, not New York”); Goode v. Sandoval, 171 A.D.3d 1059, 98 N.Y.S.3d 332 (finding that Family Court’s determination granting motion to dismiss father’s petition on ground that Connecticut Court would be more appropriate forum was proper; although subject children resided in New York from 2014-2016 and subsequently moved to Connecticut in mid-2016, the substantial, relevant evidence pertaining to subject children was in Connecticut). The next factor considered by this Court is factor (g), “the ability of the court of each state to decide the issue expeditiously.” For the reasons set forth above in factors (c) and (f), including the location of the witnesses with information regarding the subject child’s care, protection, and daily life, the court in California has a greater ability to determine the issues expeditiously. A judge in New York is no more competent to determine the issues and assess the credibility of the parties than a judge in California. See Sara Ashton McK., 111 A.D.3d at 476. Although the New York County Family Court has greater familiarity with the background facts and issues in this matter than any court in California pursuant to factor (h), this does not outweigh the consideration that substantial, relevant evidence pertaining to the subject child’s care, protection, education and personal relationships is in California. See Paderno v. Shvetsova, 96 A.D.3d 762, 2d Dept. 2012 (“particularly relevant to the jurisdictional determination is whether the forum in which the litigation is to proceed has optimum access to relevant evidence.”) Further, the undersigned jurist has had no significant history with this matter, having only presided over these proceedings since March 23, 2021. No testimony has been taken before this jurist, nor has any evidence been presented. While this jurist has become familiar with the underlying issues and circumstances as a result of reviewing the procedural history and the moving and cross-moving papers, this Court is no more familiar with the facts and circumstances than a court where the child presently resides. See P.M., 65 Misc.3d at 1218(A). Based on the factors identified herein, this Court declines to exercise jurisdiction based upon its determination that New York is an inconvenient forum, and determines that California is a more appropriate forum. See Renaldo R. v. Chanice R., 131 A.D.3d 885, 16 N.Y.S.3d 544 (1st Dept. 2015); Eric R. v. Celena P., 121 A.D.3d 524, 994 N.Y.S.2d 340 (1st Dept. 2014). As a result, these proceedings are stayed and Adam N., by his attorney, is directed to provide Darah D., through her attorney, the attorney for the child and this Court with the name, telephone number, and address of the proper court in which Adam N. will seek relief in California, on or before May 27, 2021. Upon receipt of such information, this Court will provide a certified copy of this Decision and Order to the appropriate jurist and court official(s) in California. The parties are directed to file petitions in said court on or before June 10, 2021, should the parties choose to pursue the relief sought in these matters in a California court. The instant proceedings are hereby stayed until June 17, 2021, on which date the petitions shall be dismissed for the reasons stated herein. Accordingly, it is hereby: ORDERED that Adam N.’s cross-motion is granted to the extent that this Court declines to exercise jurisdiction based upon the determination that New York is an inconvenient forum pursuant to Domestic Relations Law §76-f; and it is further ORDERED that Adam N, by his attorney, shall provide Darah D., through her attorney, the attorney for the child and this Court with the name, telephone number, and address of the proper court in which Adam N. will seek relief in California, on or before May 27, 2021; and it is further ORDERED that the parties shall file petitions in the appropriate court in California on or before June 10, 2021, should the parties choose to pursue such relief; and it is further ORDERED that the instant proceeding shall be stayed until June 17, 2021; and it is further ORDERED that all future court dates are vacated and on June 17, 2021, the instant proceedings shall be dismissed. This constitutes the Decision and Order of this Court. Dated: May 10, 2021
