In a matrimonial action in which the plaintiff wife was granted a divorce, she appeals from so much of an order of the Supreme Court, Nassau County, as denied her cross motion, inter alia, to “dismiss” defendant’s motion for custody of the infant issue of the marriage upon the ground of lack of subject matter jurisdiction.
A New York Family Lawyer said that the parties, who had resided with their two minor children in Nassau County, were divorced by a judgment of the Supreme Court, Nassau County. The judgment incorporated an earlier separation agreement, which was to survive the judgment. The agreement provided, inter alia, that plaintiff would have “principal custody” of the two children and defendant would have certain visitation rights. The agreement also provided that each party could live wherever he or she chose.
A New York Custody Lawyer said that defendant moved for custody of the children and other relief at Special Term early in 1979, alleging that plaintiff had interfered with his visitation rights. The court found that plaintiff had interfered with defendant’s rights by removing the children to California and Florida and that she had decided, without consulting defendant, to move to California permanently with the children.
The court ordered that the children remain in Nassau County and ruled that plaintiff would remain their principal custodian as long as she remained in Nassau County with the children. The order also prohibited either parent from removing the children from this State without either a further court order or written consent of the other party.
In spite of this, plaintiff did not obey the order and took the children with her to California.
A Bronx Family Lawyer said on April 28, 1979 the parties entered into an agreement to modify some of the terms of the original separation agreement. The “modification agreement” recited that both parties recognized that plaintiff is the appropriate custodian of the children and authorized her to live with them in California.
A Bronx Child Custody Lawyer said in March, 1980 plaintiff commenced a proceeding to modify the order of the New York court by removing the restriction that she remain in Nassau County to retain custody. By order, the California court (1) denied defendant’s motion to dismiss the proceeding without prejudice, and (2) declared it would retain jurisdiction pending a final determination of that issue by this court.
Under these circumstances, the Court hold that Special Term erred in concluding it had subject matter jurisdiction under section 75-d of the Domestic Relations Law. We need not reach any of plaintiff’s other contentions. Since the children have resided in California for the past 11/2 years and are presently there, section 75-d of the Domestic Relations Law is the relevant jurisdictional provision. The parties do not contest this; moreover, plaintiff concedes in her brief that the first prong of the two-prong test prescribed by the paragraph has been met because defendant resides in New York. Thus, the relevant inquiry is whether there is, in New York, “substantial evidence concerning the child’s present or future care, protection, training and personal relationships.”
The Court of Appeals has stated, in reference to the determination of whether the “substantial evidence” contemplated by paragraph (b) of subdivision 1 exists, that a particularly relevant factor “is whether the forum in which the litigation is to proceed has ‘optimum access to relevant evidence’ “. The court further noted that maximum contacts are required and that the legislative design of the UCCJA was to limit, rather than proliferate, jurisdiction.
The narrow language of a case law and the absence of the children from New York in the case at bar, compel a finding that subject matter jurisdiction did not exist because there is not “substantial evidence concerning the child’s present or future care, protection, training, and personal relationships”. The children have lived in California for 18 months, and plaintiff has documented in great detail the substantiality of the evidence (and the numerous specific sources of such evidence) in California. Defendant’s assertion that “substantial evidence” exists in New York is vague and unconvincing by comparison. He alleges there is evidence in New York concerning his suitability as a father and concerning the children’s condition and preferences, presumably coming from friends and relatives.
The absence of children from a State for 18 months is a strong indicator that there is no longer “optimum access to relevant evidence” in that State. Special Term’s assertion of jurisdiction violated the spirit of the law as expressed in a court decision, and the Commissioners’ Notes to the statute.
Accordingly, the Court be reversed the decision on the ground abovementioned.
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