Upon the foregoing papers, defendant mother moves for an order, pursuant to Military Law § 304, staying the instant matrimonial action on the ground that her current enlistment in the armed forces materially affects her ability to defend the action. Alternatively, defendant moves for an order, pursuant to CPLR 3211, dismissing the complaint on the ground that the court lacks both subject matter jurisdiction and personal jurisdiction over the defendant. Plaintiff father opposes the instant motion and cross-moves for the following relief: (1) temporary legal custody of the parties' minor child; (2) physical custody of the child each Monday, from the time he is dismissed from school, until the following Wednesday morning, when he is to be returned to his school and (3) physical custody of the child on alternating weekends, from Friday, when he is [*2]dismissed from school until Monday morning, when he is to be dropped off at school. He also requests that, in the event the court does not enter a stay of the action and defendant defaults, that an attorney be appointed to represent her pursuant to New York Military Law § 303 (1) and the Servicemembers Civil Relief Act, 50 App. U.S.C.A. § 501 et seq. ^[FN1]

The parties were married in May 1998. They have a minor child who was born in the United States in January 2003. Both parties are enlisted members of the United States Army currently on active duty at the same army base located in the Republic of Korea, where they have been stationed since September 2003. On or about October 24, 2005, plaintiff commenced the instant divorce action. Prior to commencement of the divorce action, the parties executed a marital separation agreement, dated July 26, 2004, which was negotiated and prepared by their respective Judge Advocate General (JAG) attorneys. With respect to custody of the parties' child, the agreement states, in relevant part, that:

The custody of the minor child of the parties . . . shall be shared jointly by Husband and Wife. The parties agree that although the child may reside with the Wife, both parties shall exercise joint care and control of the child and both parents may visit said minor at any and all reasonable times and places. The Non-Custodial Parent will provide 72 (seventy-two) hours notice before visitation. If less than 72 (seventy-two) hours notice is provided, the Custodial Parent will permit visitation if she/he is able to reasonably accommodate such visitation. The parties hereto represent and agree that the welfare of the child shall be the major factor governing all aspects of custody and visitation rights and it is further understood that nothing contained herein shall constitute an abandonment of the said child by either of the parties. The parties agree to consult one another with regard to any and all major decisions affecting the health, education and welfare in the best interests of said child.

The Wife shall be referred to herein as the Custodial Parent. The husband shall be referred to as the Non-Custodial Parent. The Custodial Parent agrees to consult with the Non-Custodial Parent on such matters as major medical treatments and selection of schools for the child to promote the best interests of the child. The Custodial Parent shall exercise final determination over these matters.

The separation agreement also provides that the Non-Custodial Parent shall have [*3]the privilege, during visitation periods, to take the child home or on outings and excursions and with the Custodial Parent's prior consent, can visit the child in "their" home. The parties also agreed to be flexible in their visitation arrangement, to endeavor to resolve all visitation conflicts in good faith and to "make all reasonable efforts to accommodate the schedule of the other parent." Moreover, "failure to reach mutual accord on a requested adjustment shall not constitute justification for the Wife or Husband to delay delivery of the child beyond the above schedule". With regard to potential visitation disputes, the parties "reserv[ed] the right to petition a court of competent jurisdiction to resolve the issue with the goal of maximizing the time with both parents in order to carry out the intent of equal shared custody; provided, however, that no modification will be implemented unless both parties agree or a court of competent jurisdiction so orders."

Subsequently, a "Provisional Visitation Agreement" was drafted which sets forth a specific weekend visitation schedule for plaintiff. However, said agreement has not been executed by the parties and, by its own terms, states that such agreement, although meant to be "a guide to interpretation" of the subject separation agreement, is "in no way intended as a formal addendum, modification or revision of the signed, written agreement previously entered into by the parties."

In an affidavit submitted in support of her motion to stay the instant action, defendant avers that her military orders require her to remain in Korea on active duty until September 2007, when she expects to return to the United States. Defendant further states that she currently is assigned to the (number omitted) Personnel Service Battalion under the immediate command of Lieutenant Colonel TJS. In further support of her motion, defendant submits an affidavit from Lt. Col. TJS which states the following with respect to defendant's availability to defend the instant action:

In this case, [defendant] will be unable to attend any proceedings of the court in this matter as a result of her military service because her military duties require her to serve her nation in Korea until at least September 30, 2007; and because there may not be necessary qualified personnel to cover down for her if she had to appear for Court in New York.

There are also several military exercises which may increase the amount of work within our unit and I need all Soldiers available to accomplish the unit's mission. In August 2006, there will be a military exercise known as UFL taking place in Korea. The dates are classified. [Defendant] will have to provide support to the installation and all service members in the exercise primarily as the Dining Facilities Specialist. In March 2007, there is a military exercise known as RSOI. The dates are classified. [Defendant] will . . . carry out her mission primarily as a Dining Facilities Specialist. Army units in Korea are mostly understaffed and losing [defendant] to appear in Court in New York, may not only be cost prohibitive for her, but will also affect the armed forces member [*4]strength here in Korea. As a senior noncommissioned officer, [defendant] is a leader among the enlisted Soldiers. [Defendant's] absence from her unit from [sic] any prolonged period of time will possibly affect the operation of the dining facility. Also, [defendant] has informed me that dealing with the current matrimonial issues has been affecting her work and her personal life, and that she cannot adequately defend this case by going back and forth from Korea to New York.

[Defendant] will be unable to appear and protect her interests in this case, probably until at least 30 days after her departure from Korea back to the United States. Therefore, I understand that [defendant] is requesting a stay of all proceedings until such time as her ability to present a defense is no longer materially affected by her military service. Specifically, [defendant] asks the Court to stay this case until at least October 30, 2007. I understand that her attorney will present the matters regarding this stay in court.

In opposition to defendant's motion and in support of his cross motion for a modification of the existing custody arrangement contained in the parties' separation agreement, defendant submits an affidavit wherein he avers that New York is the appropriate forum for the instant action as he continues to maintain his residence in Brooklyn, his Brooklyn address is listed as his "home of record" in military documents, he pays New York state and city taxes and is registered to vote in New York. He further avers that it has always been his intention to return to Brooklyn "when [his] military service concludes."

With respect to the court's jurisdiction to determine the instant custody dispute, he states that after the parties' child was born, the child temporarily moved to Florida with defendant when he was three months old, resided in Florida for less than six months and subsequently relocated to Korea when defendant was stationed there and joined plaintiff at the military base. Accordingly, plaintiff contends that since the child lacks a domestic home state and the Korean courts located where the child currently resides will most likely decline jurisdiction over the matter, the New York court, which has jurisdiction over the instant divorce action should also exercise jurisdiction over the subject custody dispute as "it is the only tribunal that can do so." In support of this contention, plaintiff submits a letter addressed to the court from Captain JJC, an Army attorney allegedly "familiar with the operation of the Courts of the Republic of Korea with regard to custody disputes," which states, in relevant part, that "[t]he Courts of the Republic of Korea generally do not hear or determine custody disputes between two parents, neither of whom are Korean nationals. The local court here would refuse to exercise jurisdiction to determine custody of [the child] because both his parents are United States nationals."

Plaintiff also maintains that the parties' custody arrangement should be modified because defendant allegedly has failed to abide by the visitation terms contained in the [*5]separation agreement by refusing visitation unreasonably, interrupting visitation and initiating confrontational, antagonistic and violent incidents between the parties, some of which occurred in the presence of the parties' son. Specifically, he alleges that on January 24, 2005, defendant "came to his place of duty and made a scene," on March 25, 2005 she became "violent and hysterical" at plaintiff's home while their child was in his care, causing the child to become fearful and cry, and "then took [the child] against [plaintiff's] wishes and in contravention of [the] visitation schedule and promised that she would never let [plaintiff] see [the child] again." He further avers that during a June 7, 2005 incident, he was physically assaulted by defendant in the presence of their child and that such incident formed the basis for a subsequent substantiated spousal abuse finding. Defendant also avers that, as a result of the parties' visitation disputes, "numerous military and command interventions have become necessary" and such disputes have caused "a great deal of disruption . . . to both of our military commands."

In support of his claims, plaintiff submits a copy of a "No Contact Order with spouse" which states that on June 7, 2005, plaintiff "and spouse had a domestic violence incident. It appears the incident was initiated and caused by his spouse. To ensure no escalation of the event occurs a no contact order is issued immediately and remains in effect until rescinded." Plaintiff also submits a memorandum from Major SRA, which states that a multidisciplinary assessment was conducted with respect to plaintiff's allegations of spousal abuse which resulted in a determination of "[s]ubstantiated [s]pouse abuse of [plaintiff] by the spouse with Level 3 intervention." It was recommended that the parties receive individual counseling, legal referrals with respect to their separation and divorce issues and undergo monitoring by their command as needed to facilitate their separation agreement, including visitation issues. Plaintiff also submits a letter from Lt. Col. TEB, a director of Public Affairs for the Army, which states that " it is the best interest of the U.S. Army that the matter concerning [the parties] be resolved as expeditiously as possible" and also notes that the parties "need their differences resolved to not only benefit the care to their son, but to allow them both to focus lost energy to their duties."

Plaintiff also alleges that, despite several meetings between the parties and their JAG attorneys, Army social workers and members of the parties' commands, the disputes between the parties have not been resolved. He also states that on August 12, 2005, his commanding officer "required an escort to be present each time [d]efendant and I met to exchange [the child]" which has "created a burden on [the parties] and the military." Plaintiff further avers that the child has been residing exclusively with him since April 2006. Accordingly, he argues that he be awarded sole custody of the child so that the child's "legal status reflects the reality of the [physical custody] situation" and further maintains that the set visitation schedule he proposes would diffuse any confrontations between the parties. Specifically, the visitation schedule would allow "pick-ups and drop-offs" to be at the child's school, so that the parties need not encounter each other, [*6]and its prearranged equal-time division of physical custody would eliminate disputes over when and how visitation would occur.

In opposition to defendant's cross motion for a modification of the parties' current custody arrangement, defendant contends that plaintiff has failed to demonstrate the requisite "changed circumstances" to warrant such modification. Defendant also argues that the court should "abstain from entertaining any issues of custody and visitation" since the parties' child has never resided in New York. Relatedly, defendant maintains that the court lacks jurisdiction over the parties themselves as they were not married within the State of New York and have never declared same to be their domicile.

In reply, plaintiff submits an additional letter from Lt. Col. TJS written in response to an inquiry from plaintiff's attorney as to defendant's availability for court appearances beyond the previously identified periods - namely August 2006 and March 2007 - during which defendant would be rendered unavailable due to military necessity. The letter states, in relevant part, that:

[I] will take into account any scheduled court dates when determining if [defendant] will be able to take leave. While it is always difficult to be without a senior non-commissioned officer, I see no reason why the needs of my Battalion would prevent [defendant] from being able to take leave in order to attend a court hearing.

Subsequently, defendant submitted a sur-reply affidavit stating that there had been a change in her commanding officer and attached a letter from her new commanding officer concerning, once again, the availability of defendant to defend the instant divorce action in New York. Said letter, from Captain TB, states the following with respect to the defendant's availability:

In this case, [defendant] will be unable to attend [the] majority of the proceedings of the court in this matter as a result of her military service because her military duties require her to serve her nation in Korea until at least September 30, 2007; and, because there may not be necessary qualified military personnel to cover down for her if she had to appear suddenly for Court in New York. In the US Army we are afforded 30 days of accrued leave per calendar year. However, this must be taken with enough prior advance notice to ensure proper coverage. In Korea, leave is not afforded liberally as in the Continental U.S., as only 10% of the unit may be off the island of Korea at any given time. There is also the issue of financial readiness, as the tickets to the U.S. are costly (around $1200) and taking several trips back and forth becomes a hardship on any Soldier.

In addition, a letter has been submitted to the court from Captain MBW, an Army trial counsel and the legal representative for defendant's commanders, which states the following with respect to defendant's availability to attend any necessary court dates:

There has been a great deal of confusion concerning the availability of [defendant] [*7]to appear before your court. Changes in [defendant's] chain of command have complicated the issue. The bottom line is that [defendant's] [c]ommand will not act as a shield to protect her form the jurisdiction of the State of New York. The needs of the Army are the foremost concern of the Commanders. The needs of the Army take precedence over the needs of the individual. However, the Army does not need to have [defendant] present in Korea at all times. Soldiers in Korea commonly take one to two weeks of leave each year, often traveling home to America or for a holiday in Asia. It was not the intention of Captain [TB - name omitted] or of former commander [Lt. Col. TJS - name omitted] to tell this court that she would be unavailable for an entire year.

There are still obstacles to allowing [defendant] to take leave. Soldiers of her grade do not exist in large numbers in her Military Occupational Specialty. She is a cook and has the training to run a large kitchen. During certain military exercise[s] when our kitchens work overtime she would not be available to leave the country. There may be other times when due to a temporary shortage of personnel her leave request would be denied. Finally, any Soldier typically needs to request leave time about two months in advance of the leave in order to ensure they receive it. Even given her special skills, [defendant] should be able to take leave if given several months notice.

As an initial matter, the court finds that defendant is not entitled, pursuant to Military Law § 304, to a stay of the instant action. Section 304 provides, in relevant part, that:

At any stage thereof, any action or proceeding in any court . . . in which a person in military service is involved as a party, during the period of such service or within sixty days thereafter . . . in the discretion of the court . . . shall, on application to it by such person . . . be stayed as provided in this act, unless, in the opinion of the court . . . the ability of . . . the plaintiff to prosecute the action, or the defendant to conduct his [or her] defense . . . is not materially affected by reason of his [or her] military service.

It is well established that although "[t]he purpose of this section is to protect those in the military from sacrificing their rights while serving their country" (Jusino v New York City Housing Auth., 255 AD2d 41, 46 [1999]), Military Law § 304 "was not intended to give a litigant, even though in military service, complete immunity from claims arising as a result of his [or her] civilian life and activities" and, therefore, should only "be used as a shield and not as a sword" (Isaacs v Isaacs, 37 NYS2d 527, 527 [1942]).

In deciding whether a soldier's ability to defend a case is materially affected by his or her military service, the court must determine whether such factors as the servicemember's geographical location or specific position or duties in the military prevents him or her from adequately defending the action in question (see Greco v Renegades, Inc., 307 AD2d 71, 712 [2003]). As a result, courts have generally looked to the servicemember's commanding officer for guidance with respect to whether the [*8]defendant is available to attend court hearings or otherwise participate in the active defense of the subject action (see Warshawsky v Warshawsky, 215 AD2d 374, 375 [1995]; cf. Mirisoloff v Monroe, 16 AD3d 1161, 1162 [2005][defendants' motion for a stay on the ground of military service, pursuant to the analogous federal statute in effect at the time, the Soldiers' and Sailors' Civil Relief Act of 1940 (50 USC Appendix § 501 et seq.), denied where they "failed to submit a letter or other communication from (the) commanding officer stating that (defendant Monroe's) military duty prevent(ed) appearance and that military leave (was) not authorized for (defendant Monroe)" (internal quotation marks and citations omitted)]; accord Corrado v Harris, 13 Misc 2d 4, 4 [2006]). Moreover, the mere fact that a servicemember is stationed overseas, without more, generally is insufficient to warrant the imposition of a stay pursuant to section 304 (see Pinkowski v All-States Sawing and Trenching Inc., 290 AD2d 873, 873 [2002]). Similarly, a stay will not be granted where it is established that the servicemember in question has the ability to utilize leave time to defend the action (see Fischer v Keep, 231 AD2d 864, 864 [1996]; Matter of Theresa G. v Eric L., 133 Misc 2d 414, 417 [1986]).

In the instant case, the court finds that defendant has failed to demonstrate that her ability to defend the action is materially affected by reason of her current military service. Defendant has fully participated in the instant motion practice, which has expanded well beyond the parameters of her original motion seeking a stay, and although her counsel has stated that she is currently appearing for defendant solely on a "limited" basis, defendant currently appears to possess ready access to, and active communication with, her legal representative. Nor has she demonstrated that her future ability to either obtain or communicate with legal counsel or participate in motion practice as necessary will be materially affected by reason of her military service (see generally Guzman v Warenda, 161 AD2d 1017, 1018 [1990]).

In addition, to the extent the defendant shall be required to attend court hearings in the action, she has failed to establish that either her geographical location or military duties prevent her availability for such appearances to the extent that her defense of the instant action would be "materially affected" as defined by the relevant case law. Three separate letters from defendant's former and current commanding officers and the current commanders' legal representative have been submitted to the court confirming the availability of leave to defendant for the purpose of attending any court-ordered hearings which may be scheduled in this action. Although an initial letter from Lt. Col. TJS, defendant's former commanding officer, stated, in conclusory terms, that defendant "will be unable to attend any proceedings of the court in this matter as a result of her military service because her military duties require her to serve her nation in Korea until at least September 30, 2007; and because there may not be necessary qualified military personnel to cover down for her if she had to appear in Court in New York," the letter only specified three time periods during which defendant would be conclusively unavailable, namely July 28, 2006, August 2006 and March 2007. The letter also noted that her [*9]absence for a "prolonged period" could adversely affect the Army's operations. Said letter did not address, however, the availability of leave to defendant for the purpose of attending court appearances scheduled in New York to the extent such appearances did not fall within the specifically proscribed time periods. Such omission was rectified in Lt. Col TJS's follow-up letter which stated that "[w]hile it is always difficult to be without a senior non-commissioned officer, I see no reason why the needs of my Battalion would prevent [defendant] from being able to take leave in order to attend a court hearing."

The letter from Captain TB, defendant's current commanding officer, also acknowledges the availability of leave to defendant. Specifically, it states that members of the Army are afforded 30 days of accrued leave which "must be taken with enough prior advance notice to ensure proper coverage." Accordingly, although Captain TB confirms that defendant would not be able to appear in court either on November 16, 2006 or for the "majority of the court appearances" in the action and, in addition, coverage for her absence might not be available if she was required to appear "suddenly" in New York, she does not aver that defendant would be unable to utilize her accrued leave to attend a court appearance if said appearance was scheduled with sufficient advance notice, as Captain TB indicated was a necessary prerequisite to obtaining such leave. Moreover, Captain TB's conclusory statement that defendant would be unavailable for the majority of court appearances in the action is not probative on the issue of her actual availability given that the dates of such anticipated future appearances were unknown at the time the letter was written and other portions of the letter irrefutably affirm the availability of leave with advance notice.

Finally, a letter was also submitted to the court by Captain MBW, a legal representative for the commanders of defendant's company and battalion. The letter affirms that it was not the intention of defendant's commanding officers to represent to the court that defendant would be unavailable to appear in court in New York for an entire year. Rather, the letter states that " it is common for soldiers to take one to two weeks of leave a year" and "even given her special skills, [defendant] should be able to take leave if given several months notice." As Captain MBW explained, "any soldier typically needs to request leave about two months in advance of the leave in order to ensure they receive it."

Although defendant contends that Lt. Col. TJS's initial letter evidenced that leave was not available for her to attend court proceedings in New York, and Captain TB's letter allegedly has reaffirmed defendant's inability to appear, the court finds that such letters merely highlight the difficulties inherent in arranging for the temporary absence of a specially skilled enlisted member such as defendant. In addition, however, the letters explicitly posit a solution to such dilemma; namely, the request by defendant, with sufficient advance notice, for leave to attend a court hearing which has similarly been scheduled with adequate advance warning and sensitivity to any time periods specifically identified by commanders as unavailable. Moreover, defendant's contentions that [*10]plaintiff's superior military rank has somehow influenced the content of some of the letters submitted is wholly conclusory. The court notes that the letters themselves do not appear to be contradictory, as urged by defendant. Rather, Lt. Col. TJS, Captain TB and Captain MBW all agree that leave to attend court hearings is obtainable upon sufficient advance notice where there is no conflict with specific planned military exercises or other exigencies. Although Lt. Col. TJS's initial letter contained a blanket statement that defendant was unavailable to appear in New York for the duration of her service, the same letter only specifically identified a few time periods as absolutely "off limits," did not explicitly address the issue of leave and was subsequently clarified by an additional letter which affirmed that prearranged leave with the requisite amount of notice could facilitate the defendant's appearance in New York for any necessary court proceedings.

In addition, to the extent that defendant argues that it was improper for plaintiff's counsel to contact Lt. Col. TJS or other Army officials with respect to the availability of leave for defendant, it has been held that a plaintiff is not precluded from applying directly to a defendant's commanding officer to arrange for defendant's appearance with respect to a pending action (Sardo v Donnellan, 180 Misc 611, 613 [1943] ). Accordingly, where, as here, the plaintiff's counsel merely sought clarification of the Army's leave policy and its applicability to defendant, the court does not find any impropriety sufficient to warrant its disregard of letters submitted from the defendant's superiors or other officials with respect to defendant's availability to appear in New York for court proceedings.

Defendant has also stated that travel to the United States from Korea would be a financial hardship to her. However, defendant has not proffered any substantiation for this claim. Moreover, some evidence has been provided by plaintiff that no-cost military transport may be available to defendant. In addition, defendant is not precluded from seeking reimbursement of such costs and expenses based upon the alleged financial disparity between the parties upon a proper evidentiary showing.

Accordingly, the court finds that the letters submitted to this court by defendant's former and current commanding officers, as well as the legal representative for her current command, establish that defendant is able to request and receive leave to appear in court in New York upon appropriate notice to her superiors in the event her appearance becomes necessary during the course of the instant action. Moreover, there has been no showing that defendant has been impeded by reason of her military service from obtaining, or conferring with, counsel or fully participating in either initiating or responding to motion practice as needed. As a result, defendant's motion for a stay pursuant to Military Law § 304 is denied.

To the extent that defendant seeks dismissal of the instant action on jurisdictional grounds based upon plaintiff's alleged failure to fulfill the residency requirement contained in Domestic Relations Law § 230, such portion of her motion is also denied. DRL § 230 (5) provides that a divorce action may be maintained where either party has [*11]been a resident of the state for at least two years immediately preceding the commencement of the action. Residency, for purposes of DRL § 230, has been held to be synonymous with "domicile," which is provable by factors such as voter registration and payment of state taxes and "is not lost by temporary absences from the State, provided there is a corresponding intention to retain New York as one's domicile" (Unanue v Unanue, 141 AD2d 31, 40 [1988]). In the instant case, plaintiff avers that military documents list his home of record as Brooklyn, New York, and he has submitted other affidavit and documentary evidence demonstrating that he is registered to vote in New York, pays New York state and city taxes and recently voted in New York. Defendant has proffered no evidence refuting plaintiff's residency in New York and, at oral argument on the instant motion and cross motion, defendant's counsel stated that defendant would concede that New York was the plaintiff's domicile. In any event, it is well settled that "[t]he durational residency requirements [imposed by Domestic Relations Law § 230] are not a limitation upon the subject matter jurisdiction of the Supreme Court, but are merely substantive elements' of the matrimonial cause of action, which the plaintiff must allege and prove" (Unahue, 141 AD2d at 34; see also Lacks v Lacks, 41 NY2d 71 [1976]; Wilson v Wilson, 176 AD2d 115 [1991]; Rubin v Rubin, 73 AD2d 148 [1980]). Accordingly, defendant is not entitled to dismissal of the instant divorce action on jurisdictional grounds.

With respect to plaintiff's cross motion for modification of the existing custody arrangement, the court also finds that it has jurisdiction over the custody issues in this action. The mere existence of jurisdiction for a divorce action does not automatically support a finding of jurisdiction with respect to custody as "these issues [are] on different jurisdictional terrain" (Foley v Foley, 170 Misc 2d 87, 89 [1996]). Specifically, custody jurisdiction is governed by Domestic Relations Law § 76, which provides that a New York court only has jurisdiction to make an initial child custody determination if:

[1](a) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as parent continues to live in this state;

(b) a court of another state does not have jurisdiction under paragraph (a) of this subdivision, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under seventy-six-f or seventy-six-g of this title, and;

(i) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and

(ii) substantial evidence is available in this state concerning the child's care, [*12]protection, training, and personal relationships;

(c) all courts having jurisdiction under paragraph (a) or (b) of this subdivision have declined to exercise jurisdiction on the grounds that a court of this state is the more appropriate forum to determine the custody of the child under section seventy-six-f or seventy-six g of this title; or

(d) no court of any other state would have jurisdiction under the criteria specified in paragraph (a), (b) or (c) of this subdivision;

2. Subdivision one of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

3. Physical presence of, or personal jurisdiction over, a party or a chid is not necessary or sufficient to make a child custody determination

"Home state" is defined as "the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding" (Domestic Relations Law § 75-a). Moreover, in applying DRL § 76, "[a] court of this state shall treat a foreign country as if it were a state of the United States" (Domestic Relations Law § 75-d; see also Randall v Randall, 305 AD2d 512, 513 [2003][finding that DRL § 75-d barred New York courts from exercising jurisdiction over custody proceeding brought in New York since Costa Rica was properly construed as the child's home state where the subject child had resided in Costa Rica almost since birth and did not reside in New York for the requisite six month period preceding commencement of said action]).

It is undisputed that the child resided in Korea for the six months immediately preceding the commencement of the instant divorce action and continues to reside in that jurisdiction. Although there is a dearth of case law on this issue, the plain meaning of the relevant statutes and the holdings of the few cases which have addressed same seemingly support the conclusion that a foreign country can serve as the "home state" of a child for jurisdictional purposes where said child has resided there for six months prior to commencement of the subject custody proceeding (see DRL §§ 75-a, 75-d, 76; see also Randall, 305 AD2d at 513]). However, where the child's home state, whether domestic or foreign, has declined jurisdiction, and no other state has a jurisdictional claim under DRL § 76 (1)(a) (b) or (c), a New York court may exercise jurisdiction over the subject custody issues even if substantial evidence concerning the child's care, protection, training and personal relationships is not presently located in the state (see DRL § 76 [1][d]).

In the instant case, plaintiff has proffered a letter from an Army attorney familiar with the Korean courts which states that such courts will refuse to exercise jurisdiction [*13]over a custody dispute involving two United States nationals. Defendant has failed to dispute this assertion. It is well settled that "[f]acts appearing in [a] movant's papers which the opposing party does not controvert, may be deemed to be admitted" (Kuehne & Nagel, Inc. v Baiden, 26 NY2d 539, 544 [1975][applying rule in summary judgment context]; accord Matter of S.L.K. v P.J.B., 14 Misc 3d 1208 [A][2006][applying rule in context of motion for blood examination in paternity dispute]). Accordingly, given the uncontroverted position that Korea, the child's putative home state, would conclusively decline jurisdiction over custody in this case, the court must analyze its own jurisdictional authority in light of such declination. If the courts of Korea, upon presentation of a copy of this order, do take jurisdiction, this court would be inclined to defer to the court where both parties, the child and the allegations occurred. The fact that neither party disputes the allegation that the courts of Korea will not hear disputes relating to United States service members and no action was started by either party in Korea, lead this court at this juncture to believe that Korea would decline jurisdiction

In so doing, the court finds that it may exercise jurisdiction pursuant to DRL § 76 (1)(d). Aside from Korea, the declining state, no state possesses both the requisite significant connection to the child and the child's parents and substantial evidence concerning the child's care, protection, training, and personal relationships as required by DRL § 76 (1)(b) (i) and (ii). Section 76 (1)(d), however, provides, in essence, a "safety net" for just such a situation, allowing a New York court to exercise jurisdiction where no other appropriate forum exists under DRL § 76 (1)(a) (b) or (c).

In the instant case, the child has never resided in New York. However, his connection with any alternate jurisdiction in the United States is similarly tenuous. The record reveals that he was born in Oklahoma, moved to Florida with defendant in April 2003 when he was only three months old and, thereafter, moved to Korea approximately five months later in September 2003. Accordingly, although there is some evidence that defendant has a connection to Florida and may have resided there at one time, such connection is certainly no more significant than the plaintiff's connection to his New York domicile. Moreover, given the brief duration of the child's presence in Florida when he was less than one year old and his subsequent absence from that jurisdiction for approximately three and one half years, the court finds that substantial evidence concerning the child's care, protection, training and personal relationships is not available in that jurisdiction. Accordingly, given the pressing nature of the parties' custody dispute, which shall be addressed within the instant decision, infra, and the absence of any viable alternative forum pursuant to the criteria mandated by DRL § 76 (1)(a) (b) and (c), the court finds that it is authorized to exercise its jurisdiction over custody issues in this action pursuant to DRL § 76 (1)(d). In doing so, the court recognizes the difficulty that will ensue in litigating a custody, domestic violence dispute involving members on active duty in the military so far away. The court also recognizes the important role of the military and the parties' primary responsible to serve our nation. Yet, the parties and the [*14]child when faced with allegations of domestic violence and strife must have a forum to seek civil legal redress.

Turning to the substantive custody modification issue, the court finds that a hearing is warranted with respect to plaintiff's cross motion for a modification of the current joint custody arrangement between the parties. "[W]here parents enter into an agreement concerning custody, it will not be set aside unless there is sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interest of the [child]'" (McNally v McNally, 28 AD3d 526, 527 [2006], quoting Smoczkiewicz v Smoczkiewicz, 2 AD3d 705, 706 [2005], quoting Matter of Gaudette v Gaudette, 262 AD2d 804, 805 [1999]); accord Matter of Rawlins v Barth, 21 AD3d 495, 495 [2005], lv denied 5 NY3d 717 [2005]; Bobinski v Bobinski, 9 AD3d 441, 441 [2004]; Thompson v Thompson, 267 AD2d 516, 517 [1999]). Stated differently, "[a]lthough the totality of the circumstances of the case and the best interests of the child are factors to be considered in all cases where modification of custody is sought, where the parties have entered into an agreement, the agreement is entitled to considerable weight and it is incumbent on the party seeking the change to show that in light of changed circumstances continued adherence to the agreement would not be in the children's best interests" (Steck v Steck, 307 AD2d 819, 819 [2003][citations omitted]; accord Granata v Granata, 289 AD2d 527, 527 [2001]). Moreover, "[a] parent who seeks a change in custody is not automatically entitled to a hearing but must make some evidentiary showing sufficient to warrant a hearing" (Teuschler v Teuschler, 242 AD2d 289, 290 [1997]). In the event the party seeking modification is able to make the requisite evidentiary showing (Jackson v Gangi, 277 AD2d 383, 383 [2000]), the court must review, at the resulting hearing, a number of factors in considering whether the requisite change of circumstances exists and modification is warranted, including "the quality and stability of the respective home environments and each parent's past performance, relative fitness and ability to provide for and guide the child's intellectual and emotional development" (Thompson, 267 AD2d at 518 [internal quotation marks and citations omitted]).

Equally important, where the parents have agreed to share joint custody of their child, is an evaluation by the court as to whether "the acrimony between the parties has increased to the point that it bars communication, creating a situation where it is proper to revisit the issue of custody" (Matter of Wiedenkeller v Hall, ___ AD3d ___, 2007 NY Slip Op. 01460 [2007]). This comports with the principle in this jurisdiction that joint custody is "only appropriate where the parties involved are relatively stable, amicable parents who can behave in a mature, civilized fashion [and are] capable of cooperating in making decisions on matters relating to the care and welfare of the children" (Trolf v Trolf, 126 AD2d 544, 544 [1987], lv dismissed 69 NY2d 1038 [1987]; accord Braiman v Braiman, 44 NY2d 584, 589-590[1978]; cf. Matter of Morehouse v Morehouse, 251 AD2d 710, 710 [1998][modification of parties' joint custody arrangement warranted [*15]where there was "substantial record evidence" of the parties' distrust of one another and inability to cooperate]; Laura A.K. v Timothy M., 204 AD2d 325, 325 [1994][joint custody inappropriate where record before the court was replete with hostility and antagonism between the parties to a degree which indicated that they were unable to put aside their differences for the good of the child]; Matter of George W.S. v Donna S., 187 AD2d 657 [1992] [same]; Cmaylo v Cmaylo, 76 AD2d 898, 899 [1980], lv dismissed 51 NY2d 770 [1980][joint custody deemed a "failure" by court where testimony at hearing indicated that major conflicts and hostility existed between the parties]).

However, mere instances of hostility between the parties are not, in and of themselves, necessarily enough to demonstrate that changed circumstances exist which warrant modification of a joint custody arrangement, especially where the fitness of the parents is not in question, the child has a good relationship with the parents (see generally Janecka v Franklin, 131 AD2d 436, 437 [1987]; lv denied 70 NY2d 612 [1987]) and no adverse effects to the child have resulted from the existing custody arrangement (see generally Olimpia v Steven M., 228 AD2d 270 [1996]). In addition, at least one court has held that the modification of a joint custody arrangement did not have a sound and substantial basis in the record where such modification was based exclusively upon the inability of the parties to communicate with each other and there was no explicit finding that there had been a change in circumstances sufficient to warrant modification of the existing custodial arrangement previously established by agreement of the parties (see Marcantonio v Marcantonio, 307 AD2d 740, 741 [2003][reversing grant of motion to modify judgment of divorce, which had awarded joint custody to parties in accordance with their stipulation to same, where the court found that even though parties undisputably had been unable to communicate with each other since the time they were initially separated, and plaintiff was prohibited by an order of protection from communicating with defendant except for the limited purpose of decision making concerning their children, evidence demonstrated that, under the joint custody arrangement, the children had nonetheless excelled academically, were socially well adjusted and the parties were both loving and involved parents capable of providing a good home]). Moreover, discrete incidents of conflict or antagonism, occurring sporadically and without any demonstrable substantive effect on the child's well-being, are often most properly construed as "the ordinary type of bickering and conflicting behavior that estranged and divorced parents regrettably exhibit" (see generally Elizabeth T.L. v Jeffrey C.L., 24 AD3d 270, 270-271 [2005]) and do not warrant modification of a joint custody arrangement absent evidence that "the parties are so consumed with hostility, antagonism and disagreement that they are utterly incapable of engaging in the joint decision making to which they previously agreed" (Neuwirth v Neuwirth, 12 Misc 3d 1171 (A), at *3 [2006][denying motion for modification and declining to order a modification hearing where moving party merely provided evidence of sporadic conflicts between the parties which were not alleged to have affected the subject child's [*16]well-being]). However, where evidence exists that the parties, despite their agreement to share joint custody, have "become so acrimonious since they entered into the . . . agreement that joint custody [is] no longer a workable option" (Pambianchi v Goldberg, 35 AD3d 688 [2006], such joint custody arrangement may become subject to modification. Of course, as noted by this court in Neuwirth, such modification might not result in sole legal custody being vested in one parent or the other, but may encompass any number of parenting arrangements deemed warranted by the court under the circumstances.

Here, plaintiff has submitted evidence of several hostile confrontations between the parties, allegedly instigated by defendant, including at least one incident involving physical violence which occurred in the presence of the child. Moreover, the domestic violence incident led to the issuance of a "no contact" order between the parties which admonished them not to contact each other "except thru attorneys, until further notice," including any "contact via phone, e-mail, letters or any other form of communication, whether directly or through a third-party." In addition, said incident resulted in a substantiated finding of spousal abuse of plaintiff by defendant. With respect to the incident, the chief of Social Work Services issued a memorandum noting that "[t]he recent domestic dispute that involved Family Advocacy is very concerning and the fact that the child was present increased the risk of the situation." It was also allegedly deemed necessary by the plaintiff's command that an escort be present when the parties exchanged their child for visitation. None of the incidents have been specifically denied by defendant, although she does argue that, to the extent hostility exists between the parties, it is limited solely to their relationship to each other and does not impact the well-being of the child or the current custody arrangement.

Although it is true that discrete incidents of hostility or antagonism between parents which do not appear to impact upon the well-being of the child generally are insufficient to warrant the modification of an existing custody arrangement - and may not even be adequate to support a hearing on the issue - the court finds that the instant allegations raise serious questions regarding the ability of the parties to communicate and cooperate effectively with respect to the current custody arrangement and, therefore, a hearing on plaintiff's motion for modification is appropriate. In fact, pursuant to DRL 240 (1) and the Second Department's holding in Wissink v. Wissink, 301 AD2d 36, 749 NYS2d 550 (2nd Dept. 2002), the court must consider the affects of domestic violence, if any, in making a custody determination. This is especially true given that the subject separation agreement vests the parties with joint custody of the child, allows them, with few specific guidelines, to "visit said minor child at any and all reasonable times and places" and explicitly obligates them to be flexible, accommodating and communicative with each other regarding visitation issues. The agreement also requires them "to consult one another with regard to any and all major decisions affecting the health, education and welfare" of the child. Given such terms, the agreement requires that the parties possess [*17]the unfettered ability to engage in open communication, cooperation and flexibility with respect to issues impacting upon both visitation and the overall well-being of the child without such communication leading to hostile and violent confrontation. Although a "provisional visitation agreement" has been submitted to the court which allegedly evidences the parties' intent to provide a more stable and predictable weekend visitation schedule for plaintiff, it does not appear that such document has been formally executed by the parties, there is no evidence the parties have been adhering to such document and the document itself states that it is not intended as a formal modification of the separation agreement. Moreover, it is unclear whether the limited modification of the visitation schedule envisioned by such document would sufficiently resolve the problem of the alleged hostilities and communication difficulties between the parties, in light of the separation agreement's continued anticipation of a high level of communication, cooperation and flexibility between the parties with respect to all decision making concerning the child's well-being. Accordingly, on the record before it, the court finds that sufficient and serious questions have been raised, based upon the allegations of inadequate communication, hostility, antagonism and spousal abuse - including violent confrontations which allegedly have taken place in front of the child - to warrant a hearing on the issue of whether the custody arrangement currently in place should be modified in the best interest of said child. The court notes that, in the event a modification is deemed warranted after a hearing, such modification would not be limited to that sought by plaintiff, but rather could encompass any parenting arrangement the court determines to be appropriate based upon the findings gleaned from said hearing.

As a result, defendant's motion for a stay, pursuant to Military Law § 304, is denied. Plaintiff's motion for a modification of the existing custody arrangement between the parties as agreed to in the subject separation agreement is held in abeyance pending a hearing on the issue of whether such modification is necessary in the best interest of the child.

The court hereby orders that the attorneys shall appear in Part 5G on April 27, 2007, at 9:30 a.m., with their schedules and their client's schedules to set firm trial dates. The costs and expenses of defendant's travel and lodging shall be borne by defendant without prejudice to any motion by her seeking reimbursement of such costs and expenses from plaintiff upon a showing of financial need. Moreover, to the extent leave is available and authorized for defendant, but such leave cannot occur on the specific dates directed by the court, the court shall not cancel or stay the subject hearing, but rather shall adjourn and reschedule it to the earliest date that is deemed available by defendant's commanders or their legal representative.

The foregoing constitutes the decision and order of the court.

E N T E R, [*18]

J. S. C.