Dana L. Salazar, East Greenbush, for Anna BB., appellant in proceeding No. 1. Carolyn Snyder Lemmon, Albany, for Francis CC., appellant in proceeding No. 2. Sandra M. Colatosti, Albany, attorney for the child. Appeal from an order of the Family Court of Rensselaer County (Jill A. Kehn, J. and Elizabeth M. Walsh, J.), entered December 23, 2022, which, in two proceedings pursuant to Family Ct Act article 10, rejected a transfer from the Family Court of Schenectady County. Respondent Anna BB. (hereinafter the mother) and respondent Francis CC. (hereinafter the father) are the parents of the subject child (born in 2022). Three days after the child’s birth, petitioner filed a prepetition application for temporary removal of the child in Schenectady County Family Court because it believed that the child’s placement in respondents’ home would be contrary to her best interests and would put her in imminent risk of harm. Given the child’s age, many of the allegations in the prepetition application were derivative of allegations against respondents in a pending proceeding, in which respondents were alleged to have neglected their two older children.[1] A hearing was scheduled for the same day, during which respondents both argued that Schenectady County was not the proper venue for the proceedings because they resided in Rensselaer County and the child was born in Albany County. Schenectady County Family Court (Blanchfield, J.), noting the “imminent risk” that existed, exercised its emergency jurisdiction and granted petitioner’s prepetition application for temporary removal of the child but indicated that “were a formal petition to be filed, [venue] would not be [proper in] Schenectady County” because neither respondents nor the child, who as a newborn shares the residence of her parent, resided in the county. Accordingly, the court ordered that the prepetition application be transferred to Rensselaer County Family Court. Petitioner then attempted to formally commence these proceedings by filing petitions against the mother and the father in Rensselaer County Family Court, alleging child neglect. Soon after, Schenectady County Family Court entered an order removing the child and placing her in the custody of petitioner. Following Rensselaer County Family Court’s apparent rejection of the transfer to Rensselaer County,[2] petitioner re-filed the neglect petitions against respondents in Schenectady County Family Court on December 13, 2022.[3] Respondents then each separately moved by order to show cause to again transfer the proceedings to Rensselaer County Family Court.[4] Schenectady County Family Court determined that because the child was a newborn, her legal residence and domicile was that of her parents, which was in Rensselaer County. Accordingly, it held that venue was not proper in Schenectady County and ordered that the proceedings — now formally commenced — again be transferred to Rensselaer County Family Court. Rensselaer County Family Court (Kehn, J. and Walsh, J.), with two judges from that court signing the order, rejected the transfer, finding that the matter should remain in Schenectady County. Respondents appeal. Initially, it is noted that an order of transfer, and by affiliation, an order rejecting transfer, “is not appealable to this Court as of right since it is not an order of disposition which is final in nature, [and] the matter is not properly before [this Court] because [respondents] did not seek permission to appeal” (Matter of McDermott v. McDermott, 69 AD3d 1008, 1008 [3d Dept 2010] [internal quotation marks, brackets and citations omitted]). Nevertheless, as this appeal involves a novel issue, this Court will treat the notices of appeal as seeking permission to appeal and grant such permission (see Family Ct Act § 1112 [a]; Matter of James R. v. Jennifer S., 188 AD3d 1509, 1510 n 1 [3d Dept 2020]). “As may be provided by law, the county court, the surrogate’s court, [and] the family court . . . may transfer any action or proceeding, other than one which has previously been transferred to it, to any other court, except the supreme court, having jurisdiction of the subject matter in any other judicial district or county provided that such other court has jurisdiction over the classes of persons named as parties” (NY Const, art VI, § 19 [h]).[5] “Each court shall exercise jurisdiction over any action or proceeding transferred to it pursuant to this section” (NY Const, art VI, § 19 [j]; but see Matter of Julie G. v. Yu-Jen G., 81 AD3d 1079, 1080 [3d Dept 2011]).[6] In child protective proceedings, venue is proper in the county where “the child resides or is domiciled at the time of the filing of the petition or in the county in which the person having custody of the child resides or is domiciled” (Family Ct Act § 1015 [a]; see Matter of Tamara XX. v. William YY., 199 AD3d 1244, 1249 [3d Dept 2021]; Matter of Gabriella UU. [Kelly VV.], 83 AD3d 1306, 1307-1308 [3d Dept 2011]). The newborn “child must be considered to be a domiciliary of [Rensselaer County], since [Rensselaer County] is the domicile of [her] parents, who have sole legal, if not actual physical custody” (Matter of Stanley R., 147 AD2d 284, 291 [2d Dept 1989]; see Matter of Kali- Ann E., 27 AD3d 796, 798 [3d Dept 2006], lv denied 7 NY3d 704 [2006]). “The family court in a county may for good cause transfer a proceeding to a family court in any other county where the proceeding might have been originated and shall transfer a proceeding laying venue in the wrong county to a family court in any county where the proceeding might have been originated” (Family Ct Act § 174 [emphasis added]; see Matter of Carter v. Van Zile, 162 AD3d 1127, 1128 [3d Dept 2018]; compare Matter of Aponte v. Jagnarain, 205 AD3d 800, 802-803 [2d Dept 2022]; Matter of Emma D. [Kelly V.(D.)], 180 AD3d 1331, 1332 [4th Dept 2020], lv denied 35 NY3d 907 [2020]). Rensselaer County Family Court did not have the authority to reject the transfer from Schenectady County Family Court (see NY Const, art VI, § 19 [h], [j]).[7] The statute governing venue in a child protective proceeding is based on the domicile or residence of the custodians of the child and the child (see Family Ct Act § 1015). There is simply no basis for maintaining a proceeding in a county where neither of the parents nor the subject child reside. Accordingly, the order is reversed, and the matter is transferred to the Family Court of Rensselaer County for further proceedings not inconsistent with this Court’s decision. Pritzker, J.P., Lynch, Ceresia and Fisher, JJ., concur. ORDERED that the order is reversed, on the law, without costs, matter transferred to the Family Court of Rensselaer County for further proceedings not inconsistent with this Court’s decision and, pending further proceedings, temporary placement of the child in foster care shall continue.
