MAIDA, KELLY A. v. CAPRARO, JOHN ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
830.1
CAF 10-01379
PRESENT: SMITH, J.P., CENTRA, CARNI, SCONIERS, AND GORSKI, JJ.
IN THE MATTER OF KELLY A. MAIDA,
PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
JOHN CAPRARO, RESPONDENT-RESPONDENT.
KELLY A. HOBAICA, PETITIONER-APPELLANT PRO SE.
Appeal from an order of the Family Court, Herkimer County
(Anthony J. Garramone, J.H.O.), entered April 27, 2010 in a proceeding
pursuant to Family Court Act article 6. The order granted the motion
of respondent to dismiss the petition.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Petitioner mother commenced this proceeding alleging
that respondent father was in violation of a prior order pursuant to
which the parties had joint custody of their youngest child, with the
mother having primary physical custody. According to the mother, the
father violated the order by keeping the child in South Carolina and
refusing to allow the mother to bring her to New York. Family Court
properly granted the father’s motion to dismiss the petition for lack
of jurisdiction. Where a court of this state has made an initial
custody determination, it has “exclusive, continuing jurisdiction over
the determination until . . . [, inter alia,] a court of this state
determines that neither the child, the child and one parent, nor the
child and a person acting as a parent have a significant connection
with this state and that substantial evidence is no longer available
in this state concerning the child’s care, protection, training, and
personal relationships” (Domestic Relations Law § 76-a [1] [a]; see
Matter of Gulyamova v Abdullaev, 53 AD3d 489). Here, the parties and
the child moved to South Carolina in 2007, and the father, with the
mother’s consent, has had primary physical custody of the child since
December 2007. The mother did not move back to New York until
approximately the time she filed the violation petition in February
2010. We thus conclude that the child did not have “a significant
connection with New York, and substantial evidence was no longer
available in New York” concerning, inter alia, her care (Gulyamova, 53
AD3d at 490; see Matter of Felicia McM. v Jerrold L.W., 51 AD3d 501;
Matter of Zippo v Zippo, 41 AD3d 915, 916).
Entered: July 1, 2011 Patricia L. Morgan
Clerk of the Court