Renaldo R. v. Chanice R.

• Decision Date: 29 September 2015
• Docket Number: 15718.
• Parties: In re RENALDO R., Petitioner–Appellant, v. CHANICE R., Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

131 A.D.3d 885
16 N.Y.S.3d 544
2015 N.Y. Slip Op. 06971

In re RENALDO R., Petitioner–Appellant
v.
CHANICE R., Respondent–Respondent.

15718.

Supreme Court, Appellate Division, First Department, New York.

Sept. 29, 2015.

16 N.Y.S.3d 545

Bruce A. Young, New York, for appellant.

Carol L. Kahn, New York, for respondent.

FRIEDMAN, J.P., ANDRIAS, SAXE, GISCHE, KAPNICK, JJ.

Opinion

131 A.D.3d 885

Order, Family Court, New York County (Fiordaliza A. Rodriguez, Referee), entered on or about May 28, 2014, which, after a fact-finding hearing, dismissed the custody petition for lack of jurisdiction, and vacated the stay of the petition granted April 21, 2014, unanimously affirmed, without costs.

The Referee properly determined that New York State lacks subject matter jurisdiction to decide the custody petition, since petitioner failed to show that the children had been living in this State for at least six consecutive months immediately before the commencement of the proceeding or that a New York

131 A.D.3d 886

court had previously made a custody determination as to the children (see Domestic Relations Law §§ 76[1] ; 76–a[1] ). The conflicting testimony about the exact date on which the children arrived in New York was an issue of fact for the Referee to resolve, and the Referee's findings are entitled to deference (see Matter of Irene O., 38 N.Y.2d 776, 381 N.Y.S.2d 865, 345 N.E.2d 337 [1975] ; Matter of Jared S. [Monet S.], 78 A.D.3d 536, 911 N.Y.S.2d 339 [1st Dept.2010], lv. denied 16 N.Y.3d 705, 2011 WL 589734 [2011] ). The fact that the Referee issued temporary orders of custody to petitioner for educational purposes is of no moment, since the issue of subject matter jurisdiction may be raised at any time (see Langdon v. Mohr, 99 A.D.2d 957, 472 N.Y.S.2d 650 [1st Dept. 1984], affd. 64 N.Y.2d 819, 486 N.Y.S.2d 938, 476...