In the context of this contested matrimonial action, the Plaintiff (Husband) moves by order to show cause dated January 6, 2010 for the following relief: 1) an order directing the return of the parties' two children, A, age 7 and M, age 4, to New York State; 2) an order awarding the Husband temporary custody of the subject children; and 3) an order awarding the Defendant (Wife) reasonable visitation with the minor children within the State of New York.^[FN1]

The Wife opposes the Husband's application and cross moves by order to show cause dated April 9, 2010 for the following relief: 1)an order dismissing the Husband's application on the basis that New York is not the home state pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and for permission for the Wife to commence a custody proceeding in California, and 2) an order directing the Husband to pay all costs associated with Court appearances, including but not limited to transportation costs including airfare, car rentals, hotel costs, and daycare.

In opposition to the Wife's cross motion the Husband moves by order to show cause dated June 10, 2010 for the following additional relief: 1) an order directing the Wife to immediately return the children at the conclusion of the 2010 school year; 2) an order directing that the minor children [*2]reside with the Husband pending the jurisdictional decision of this Court, 3 and)an order requesting that the Superior Court of the State of California vacate any and all orders issued and to stay all proceedings now pending in California and to defer issues of support, custody and parental access to this Court.^[FN2]

These applications represent the second request for relief brought by the Husband.

On July 17, 2009 the Husband filed two separate petitions in the New York State Family Court Kings County requesting the immediate return of the children to New York. (Docket Nos. V-21695-6/09 and V-21681-2/09). Those petitions were withdrawn without prejudice by the Husband prior to disposition. He alleges that the petitions were withdrawn on his mistaken belief that the parties could resolve their differences without court intervention.

The matrimonial action was commenced by the Husband on December 29, 2009. Both the summons for divorce and the Husband's first order to show cause requested that the children be returned to New York. The Wife appeared pro se in the New York action on January 19, 2010 and the preliminary conference and the order to show cause were adjourned to February 25, 2010. On the adjourn date the Wife retained counsel and appeared by Elliott Green, Esq. The preliminary conference was conducted and the preliminary conference order stated that the issues of custody, parental access, child and spousal support, and equitable distribution were marked unresolved. The order further provided that the issue of jurisdiction to determine custody was unresolved. (See Order dated February 25, 2010).

A separate temporary order was simultaneously issued, on the consent of both parties, which directed that the Husband provide interim child support and for him to continue to pay the children's private school tuition. That order included a direction that the Husband pay the lease payments on the Lexus automobile and for the Wife to remain responsible for the insurance, registration and operating expenses of the Lexus. The consent order provided that the children would remain with the Wife in California and that the Husband would have temporary access to the children in California and that he be permitted access time in New York at times and under conditions to be mutually agreed upon. The Husband was provided daily phone access, and the Wife agreed to withdraw without prejudice a pro se support proceeding she had filed in California. The order was without prejudice to the parties' respective jurisdictional claims.

On April 8, 2010 this Court issued an order directing that monies be placed in escrow to cover the costs of both an Attorney for the Children and a forensic expert. Thereafter, on April 12, 2010 the Court appointed Brad Nacht, Esq. to represent the children.

On April 22, 2010, although represented by counsel in New York, the Wife appeared pro se and filed an ex parte application in California requesting emergency relief. Her order to show cause was heard by the Hon. Mark A. Borenstein. As a result of that application the Wife was granted a temporary order of sole legal and physical custody of the subject children. (See California order dated April 22, 2010). [*3]

Upon receipt of that order this Court communicated with the California court as required by DRL§75 - i and forwarded copies of all orders issued by this Court, reported back to the parties and counsel the substance of those communications, and provided access to counsel of the confirming e-mails. In recognition of this Court's priority to determine which state is the "home state" the California court deferred to New York. (California order dated June 15, 2010).

Accordingly, by order dated May 25, 2010, this Court scheduled a hearing on the issue of jurisdiction to be conducted on August 3, 2010. In partial response to the Husband's June 10, 2010 order to show cause, he was granted interim relief by order dated July 6, 2010, which by its terms continued all interim orders and granted him additional parental access time in California with leave to enforce the order in a court of competent jurisdiction in California.^[FN3] The Husband did not exercise his right to July visitation in California, and the children were produced by the Wife in New York, as directed, to meet with their lawyer prior to the scheduled hearing and thereafter to spend time with the Husband in New York.

At the hearing, the Wife appeared pro se, the Husband was represented by counsel and the children were represented by their attorney.^[FN4] Both parties testified on their own behalf; no other witnesses were called. At the conclusion of testimony the hearing was adjourned for the submission of closing statements. Both parties and the Attorney for the Children submitted statements in support of their respective positions.

Many of the essential facts are not in dispute. What follows is the Court's findings of fact, as relevant herein, after having the opportunity to assess and weigh the demeanor and credibility of the witnesses and the evidence submitted in support of their respective positions.

The parties have been married since January 16, 1999 and have resided in New York since prior to their marriage. The two subject children were born in New York and resided there exclusively since their births in 2003 (A) and 2006 (M). Until July 2009 the children attended daycare and private nursery schools in Brooklyn, New York and any child care providers were New York residents. Their well baby and sick medical care was received in New York as well. While in Brooklyn the family resided in an apartment owned and furnished by the maternal grandmother. Any social interaction was engaged in New York as well.

The Husband and Wife have extended family living in California, and they reside in close driving proximity to the Wife. Both sets of grandparents and the Husband's two sisters live in driving distance to the Wife's apartment in California. One of the paternal aunts visits with the children and has brought them to visit their paternal grandparents. The maternal grandparents assist in providing child care for the children, and the children sleep over at their grandparents' home once a week and are taken to school by them the following day . While the maternal grandmother owns properties in New York, neither parent has close family living in Brooklyn or elsewhere in New York City. [*4]

The Husband is a dentist and is currently self employed. He is licensed to practice dentistry in both New York and California. The Wife is a former medical resident now engaged as a research assistant at UCLA.^[FN5] At the suggestion of the Wife's mother, and to assist the Wife in obtaining employment, the parties agreed to relocate to California. On July 7, 2009, the Wife and children left New York and moved into an apartment in Sherman Oaks, California for which the Husband signed the lease. The Husband agreed to and participated in the plans to relocate, and the move reflected what the Husband assumed to be their mutual decision. In particular, the Husband asserted that the move reflected an economic decision to assist the Wife's efforts to find employment. The Wife had been out of work for approximately two years, and she needed to find other employment which might make it possible for her to apply to another residency program so she might complete her medical training.

The children were enrolled and attended private schools in California for which the Husband paid in full and the Lexus automobile was shipped to California to be used by the family upon their arrival.

The Husband remained in New York after the Wife and children moved in order to earn additional income prior to joining his family. However, approximately two weeks later and prior to his leaving New York, the Wife advised him that she had found someone else and did not want him to relocate to California in order to live with her and the children. She wanted a divorce.Shortly thereafter the Husband did leave New York and traveled to California; however, as he was not welcome to stay with the Wife, he remained at his parents' home. Although he understood he was not wanted in the Wife's home he remained in California for approximately six weeks in order to look for employment and attempt to reconcile with his Wife. He was unable to find work as a dentist, and he returned to New York.

Upon the Husband's return to New York he vacated the former marital residence as it was owned by his mother-in-law, and he has since been sued for alleged arrears in unpaid rent. The furniture in the apartment belonged to his mother-in-law and was returned to her as well.

Monies that had been placed in joint bank accounts in New York had been removed by the Wife in anticipation of her move to California. While the Husband concurred in the decision to move the family to California, the Wife's undeclared intention was to separate from her Husband and remain in California with the children.

Since July 2009 the children have lived in an apartment in California with their mother and her boyfriend, "R." The children share their own room and use the family computer transported to California by the Wife. They have each attended school and/or day care in California

since they left New York. The Husband consented to the children remaining in California during the last school year.

New York has jurisdiction to make an initial custody determination if New York is the home state of the children at the time of the commencement of the proceeding or was the home state within [*5]six months prior to the commencement of the action. DRL §76(1)(b).^[FN6]

The ability to obtain jurisdiction and the propriety of exercising jurisdiction are two separate issues. The Court must make two determinations: first, that jurisdiction lies under DRL §76, and second, that succeeding provisions do not preclude jurisdiction or do not mandate a declination of jurisdiction in favor of another state. (See; DRL §76-f [inconvenient forum], §76 -g [declined due to conduct], §76 - e [simultaneous proceeding in another state]).

As discussed above, these children have lived with both parents in New York for at least six consecutive months immediately prior to the commencement of the instant action. The divorce action was commenced December 29, 2009 with the purchase of an index number and the filing of a request for judicial intervention. (Evans v. Evans, 208 AD2d 223 [1995]). Although the divorce action was timely commenced, the Court notes that the Husband had also timely filed writs of habeas corpus and custody petitions in the Family Court Kings County within a few weeks of the children's relocation to California.

This Court thus concludes that it does have jurisdiction to determine custody as it is the home state of the children. However under the circumstances of this case, the Court must now address the California proceeding. The pendency of a proceeding in another jurisdiction does not mandate or justify dismissal. Rather, the Court must determine on the record that the foreign state is exercising jurisdiction in substantial conformity with UCCJEA. This Court is also mandated to communicate with the California court prior to determining which state's proceeding should take precedence. (DRL §75-i).

This Court has complied with the provisions of the relevant sections and has determined that California has adopted the UCCJEA and that the statutory framework in California and New York are substantially the same. Additionally , the communications between the courts need not be on the record; however, all parties have requested that they be permitted to review all e-mails exchanged between the courts and that application has been granted.

In the instant case the Wife filed an application for custody in California on April 15, 2010, approximately four months after the New York action was commenced. The California petition does not specify that there is a custody proceeding pending in New York, only that "he [the Husband] is now making attempts to return the children to New York, a reason why I am requesting a quicker service and hearing." In response to the Wife's California application, the court exercised "temporary emergency jurisdiction" and awarded the Wife temporary sole custody pursuant to California Family Code 3424. (California order dated April 22, 2010)

In deferring to this Court to determine jurisdiction, the California court stated that the determination was "without prejudice to Petitioner's [Wife's] presentation of any evidence that bears on the issue of jurisdiction or on whether California is a more convenient forum." (California order dated June 15, 2010)

In order for this Court to determine if New York is an inconvenient forum, the Court must [*6]address the delineated factors set forth in DRL §76-f.^[FN7]

In analyzing the facts as testified to by the parties the Court finds that there are no child protective issues and no domestic violence. The children have resided in California for one year on the consent of the Husband. Although his initial consent was not an informed consent, he later agreed that the children should continue their school year in California without disruption. He also withdrew without prejudice his application for a writ of habeas corpus which if heard would have addressed the children's removal from the jurisdiction prior to their attendance in school and possible acclimation to their new home.

The distances between the two courts, New York and the court that would assume jurisdiction, as measured by MAPQUEST, is 2,787 miles. The Court does not have a significant amount of information regarding the parties' relative financial circumstances. Neither party has submitted complete financial information to the Court; however, while both parents are employed, the Husband is working as a dentist while the Wife is working as a research assistant at UCLA and at Weight Watchers. The Husband testified that he understood that it was less costly for one party to travel to California than for three to travel to New York. The Court finds however that Husband's compliance with the Court directives for payment of legal fees for his children has not been consistent.

Neither party agreed to which state should have jurisdiction. While the Husband agreed to the children's move, he was unaware that his Wife did not want him to move with them. While he [*7]continued to assert that New York had jurisdiction to determine custody, he withdrew his Family Court writs and consented to the children remaining in California during the school year.

In the lives of these very young children one year is significant and all current and relevant information is now in California. The children would need to be interviewed and observed by the court appointed forensic evaluator and would need to appear for an in camera hearing.

There is every indication that each court has the ability to decide the issues expeditiously and, after consultation with the Hon. Mark A. Borenstein, this Court is assured that the statutory scheme in California provides all the procedures necessary to present evidence on the issue of custody. This Court will forward to Judge Borenstein a copy of the transcript including the pre-trial colloquy of the Attorney for the Children. While acknowledging that same is not evidence, and was not considered by the Court, it does provide the California court with the most current report on behalf of the subject children. Upon receipt of this decision and order and the accompanying transcript both courts will have sufficient familiarity with the facts and issues in the pending litigation.^[FN8] Brad Nacht, Esq. will remain the Attorney for the Children for the limited purpose of providing any information to the lawyer appointed to represent the children in California and will thereafter be relieved.

Considering the above factors, the Court concludes that New York is an inconvenient forum and that Californian is a more appropriate forum to determine the issue of custody. (Erlec v. Johnson, 58 AD3d 730 [2009]).

There is no dispute that New York has jurisdiction to address all the remaining ancillary issues in the matrimonial action and the Wife will have to address those issues before this Court by complying with court ordered discovery, appearing for compliance and pre-trial conferences and if not resolved, appearing for trial at such dates and times as the Court sets. While declining to exercise custody jurisdiction the Court still retains jurisdiction over the divorce. (Vanneck v. Vanneck, 49 NY2d 602 [1980]).

Accordingly, at the conclusion of the children's visit with the Husband in New York, the children are to return with the Wife to California to commence school. The pendente lite order of support is to remain in effect pending conclusion of the parenting issues now before Judge Borenstein. All remaining issues concerning the children (custody and parental access) are to be heard before the Hon. Mark A. Borenstein in the Superior Court of California, County of Los Angeles, Los Angeles, California.

Counsel for the Husband is to serve a copy of this order on all parties with notice of entry within fourteen days. This Court will transmit the order to the Hon. Mark A. Borenstein by facsimile and e-mail.

HON. RACHEL A. ADAMS A.J.S.C.