Recitation, as required by CPLR 2219(a), of the papers considered in the review of a

Notice of Motion to Leave for Reargue and a Cross-Motion for Declaratory Judgment submitted November 23, 2010.

The following papers were submitted by counsel

Respondent's Notice of Motion and Affidavits Annexed........... 1 & 2 [Exh. A-J]

Petitioner's Notice of Cross-Motion and Affidavits Annexed.... 3 & 4 [Exh. A-R]

Answering Affidavit of Respondent.......................................... 6 [Exh. A-J], 10

Answering Affidavit of Attorney for the Children....................... 9

Replying Affidavit....................................................................

Supplemental Affidavits...........................................................

Exhibits....................................................................................

Petitioner's Memorandum of Law............................................. 5 [Exh.1-6]

Respondent's Memorandum of Law......................................... 7 [*2]

Petitioner's Memorandum of Law.............................................. 8 [Exh. 1-6]

Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

The Respondent-Mother moves this court for Leave to Reargue a Motion to Dismiss

and to Oppose Petitioner-Father's "Verified Emergency Petition-UCCJEA Custody" by

Order to Show Cause dated September 13, 2010, arguing that the Court either

misapprehended or overlooked material matters of fact or law. Petitioner-Father

opposes Respondent-Mother's motion and cross-moves this court for a declaratory

judgment.

At the outset, the Respondent's Motion to Reargue should be denied, without further consideration, as it is procedurally defective. It is well established that the Court does not retain the papers following the disposition of an application and should not be compelled to retrieve the clerk's file in connection with its consideration of subsequent motions. On the contrary, it is the responsibility of the moving parties to assemble

complete papers which document the procedural history of the applications and provide a proper foundation for the relief requested. See, Cohen v. Romanoff, 27 Misc 3d 1208(A), 910 N.Y.S. 2d 404 (NY Sup., 2010). In the motion at bar, the respondent's counsel annexed exhibits A through J, but failed to annex all the prior pleadings and the Court Orders for which the Motion to Reargue is based. However, in order to move this matter along, and in the interest of judicial economy, it is at this court's discretion that the respondent's Motion to Reargue should be determined on its merits and not decided based on counsel's submission of defective motion papers.

BACKGROUND

The parties were married on May 19, 1990. They lived together with the subject children until 2003, when the father moved out of the marital

home, leaving the children with the mother and moving to New York. The mother and

children stayed in Arizona until the summer/fall of 2009.

In August of 2005, the parties entered into a Parenting Plan, which provided that the

parents would share joint legal custody with physical custody to the mother. The

parenting plan provided for the father to have parenting time with the children in New

York for five consecutive weeks during the children's summer recesses from school, for

one-half of the children's winter break, spring break and fall recess, and on alternate

holidays. In addition, the Parenting Plan provided that "except as otherwise set forth

herein and to the extent it is logistically possible, when the child care arrangements are

necessary and/or in the event that either parent cannot follow through with their care

times for more than twenty-four (24) hours, then he or she shall provide the other parent the first opportunity to care for [the children], prior to any third party" (emphasis added) (See, Exh."A" to Respondent's Motion to Reargue). The November 2005 Divorce Judgment incorporated all provisions of the Parenting Plan. [*3]

In July of 2009, the mother decided to move to Los Angeles, California, where she had obtained employment as a paralegal, and to start her own consulting firm. In September 2009, the children started school in California. After a few weeks, the mother concluded that the apartment that she had rented was uninhabitable due to multiple safety code violations. In October 2009, the mother took the children to Wisconsin, and left them in the care of the maternal grandparents, while she returned to California. While in California, the mother never began her planned employment as a paralegal, but instead worked full-time in a guitar store.

The children attended school in Wisconsin for the remainder of the 2009-2010 school year, and the mother visited them in Wisconsin for one week in December 2009, two weeks in February 2010, and one week in April 2010.

On January 13, 2010, the father filed a petition in the Arizona Superior Court, seeking custody of the children, based upon the mother's failure to reside with the children in Wisconsin. On June 3, 2010, the Arizona court determined that it no longer retained modification jurisdiction over the custody disputes with respect to the children because neither party, nor the children continued to reside in Arizona.

The children came to New York for their summer visit with the father in June 2010.

Rather than returning the children to Wisconsin at the end of their visit, the father filed a

Verified Emergency Petition on August 2, 2010. In the petition, the father requested orders granting him temporary custody of the children. On August 2, 2010, this court granted the father a Temporary Order of Visitation with the children, and authorized the father to enroll the children in school until the next court date of September 13, 2010. On September 13, 2010 the Temporary Order of Visitation was continued until the next court date of October 25, 2010. On October 25, 2010, the Temporary Order of Visitation was continued until December 1, 2010, and an Order directing that the subject children's dog, Cuppy, be flown to New York at the expense of the petitioner, Mr. M. On December 2, 2010, a Temporary Order of Visitation was awarded to the respondent-mother delineating the mother's visitation with the children during the Christmas holiday, Spring break, Easter recess and weekend visits. In addition, the order states that the children are to remain under the jurisdiction of New York, until final determination of the Court. The order shall remain in effect until the next court date, April 4, 2011.

DISCUSSION

Under the Civil Practice of Law and Rules § 2221, a motion for leave to reargue:

1. shall be identified specifically as such;

2. shall be based upon matters of fact or law allegedly overlook

or misapprehended by the court in determining the prior motion,

but shall not include any matters of fact not offered on the prior motion;

and; [*4]

3. shall be made within thirty days after service of a copy of the order

determining the prior motion and written notice of its entry.

A motion for reargument is addressed to the sound discretion of the court and may be granted upon a showing that the court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law. It is not designed to provide an

unsuccessful party with successive opportunities to reargue issues previously decided,

or to present arguments different from those originally presented. See, McGill v.

Goldman, 261 AD2d 593, 594 (2nd. Dept. 1999).

After review of the moving papers, annexed exhibits, opposition thereto and oral

argument, the court finds as follows:

New York Jurisdiction under UCCJEA

Jurisdiction over this proceeding is governed by the UCCJEA. Pursuant to DRL § 76, New York has initial custody jurisdiction only if:

(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 a 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 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, protection, training, and professional relationships; (c) all courts have jurisdiction under paragraph (a) or (b) of this subdivision have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under 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.

Pursuant to DRL 75-a, "home state" means 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. Pursuant to this definition,

the children had no home state at the time the father commenced this proceeding. New

York could not be their home state because they had been present in New York on a

temporary visit for less than two months. Arizona could not have been their home state

at that time because they had not been in that state for nearly a year, and the Arizona [*5]

court relinquished its jurisdiction over child custody proceedings relating to the children.

California was not the children's home state because they resided in that state with the

mother for less than a month. Wisconsin would have been the children's home state

if they had resided there with the mother.

Contrary to Respondent's argument, Wisconsin is not the children's home state

because the children never lived in Wisconsin with a parent or a person acting as a

parent. The children were moved to Wisconsin under false pretenses. The

mother led the father to believe that she and the children together were moving from

California to Wisconsin. In reality, the mother moved the children to Wisconsin to live

with their maternal grandparents, while the mother remained in California. The maternal

grandparents were not persons "acting as a parent" because the mother could not

designate them as the children's temporary legal custodian over the father's objections,

given the fact that the parents had joint legal custody of the children and provided for in

the Parenting Plan that the father had the right to care for the children, in preference to

a third party, in the event that the mother was unable to do so. In addition, to the extent

that it violated the Parenting Plan to have the children reside with the maternal

grandparents, over the father's objection, the children's wrongful presence in Wisconsin

could not give rise to home state jurisdiction. See, Krymko v. Krymko, 32 AD3d 941,

822 NY2d 570, 571 (2nd Dept., 2006).

Thus, a court of another state does not have home state jurisdiction over this matter.

In the alternative, the children and the father, at the time the petition was filed, had " a

significant connection with this state," and "substantial evidence is available in this state

concerning the children's care, protection, training, and personal relationships," giving

New York jurisdiction. See, DRL § 76 (b)((I), (ii), 76(d).

In the case at bar, both children were born in New York, spent their initial years

in New York, as per the Parenting Plan, spent six weeks of each summer and select

holidays in New York regularly for the last five years, and their paternal

grandparents and other relatives live in New York. In addition, the father was born and

raised in New York, has lived in Brooklyn for the past five years, and currently works in

Manhattan.

Contrary to Respondent's argument, the case of Gomez v. Gomez, 86 AD2d 594

(2nd Dept. 1982) is not "nearly identical" to the case at bar. In Gomez, the child's only

connection to the State of New York was based on the child's single, one month visit

with the father. In Gomez, the court found that the "child did not have significant

connection with this State as [the child's] only connection was his, one time, one-month

visitation period with his father. This period standing alone is an insufficient nexus

under the UCCJEA since presence alone is no basis under the UCCJEA to assume

jurisdiction. Id. at 595-96. Again, in the case at bar, the children and father have a

demonstrable, ongoing, past and present connection to New York, giving a basis for

New York to have jurisdiction over this matter. [*6]

Furthermore, contrary to respondent's counsel's belief, the court if fully aware of the

"actual whereabouts of the children." On September 13, 2010, this court granted the

father a Temporary Order of Visitation with the children, and the authorization to enroll

the children in school. The father enrolled the children in school in New Jersey where

he has purchased a home to which he plans to move. As stated by the Attorney for the

children:

The children are attending school in New Jersey, where they have adjusted well

and are happy, although they are forced to awaken daily at 5:30 a.m. in order to

get to school on time in the mornings. After school they stay at the home of

family friends, in Millington, New

Jersey until the father picks them up. They eat dinner at the [ friend's] home,

and do their homework there. They arrive at the father's home in Brooklyn at

approximately 8:00 p.m. on most school nights. When the father is too tired, or

comes from work too late —events which occur approximately one-quarter of the

time— the children sleep at the [friend's home]. In addition when the father

traveled to London on business for several weeks in October 2010, the children

stayed with the [friends]. They anticipate again staying with the [friends] when

the father travels to London for several weeks in February 2011. (See, Aff. of the

Attorney for the Children, pg. 7, 8)

The Attorney for the children further stated:

On October 13, 2010, [ I ] interviewed the mother, who told me that she was not

currently in a position to care for the children in California because she had not

yet adequately established her consulting business, and was still living in an

apartment that was unsuitable for the children. The mother hoped to be in a

position to care for the children by the summer of 2011. (See, Aff. of the

Attorney for the Children, pg. 8).

Respondent's counsel misrepresents the totality of the situation when counsel

states in the moving papers, that the "Petitioner has the Children staying with friends in New Jersey" (See, Respondent's Motion to Reargue, pg.8). In response to said allegation, the Attorney for the children states, " The children do return to the father's home in Brooklyn on the majority of school nights, and spend most weekends in New York, at the father's home in Brooklyn and visiting the paternal grandparents and other paternal family members in the Bronx" (See, Aff. Of The Attorney for the Children, pg. 16). The father's authorized enrollment of the children in a school, and his purchase of a home in New Jersey does not effect New York jurisdiction of this case due to the connections the children and the father have with New York. The court did not grant the petitioner's Verified Emergency Petition UCCJEA for Custody, but in the alternative granted a Temporary Order of Visitation to the father which in effect, enforced the father's rights under the agreed to Parenting Plan, which was incorporated into the 2005 Divorce Judgment. [*7]

Based on an analysis of the children's connections to New York in August 2010,

at the time the Petitioner sought to modify the custody order, the New York Court did, and continues to have jurisdiction. The children's connection to New York is more current than that available in any other state. More information is available in New York than in California, where the mother resides, therefore, no other state has a greater claim to jurisdiction.

The Respondent has failed to demonstrate that the court overlooked or

misapprehended the relevant facts or misapplied any controlling principle of law.

Accordingly, the prior orders issued by the Court remain in effect. The children shall remain in their current school, the Temporary Orders of Visitation continue until the next court date, April 4, 2011, and Cuppy, the subject children's dog, shall be flown to New York at the petitioner's expense, if petitioner has not already done so. Accordingly, respondent's motion to reargue is hereby denied.

DECLARATORY JUDGMENT

The petitioner-father moves this court to grant a Declaratory Judgment declaring

that respondent-mother has not presented any fact, allegation or demand for relief that establishes a justiciable controversy between the parties, that the Joint Custody and Parenting Plan by and between the parties dated August 30, 2005 should be enforced, and that petitioner-father has established as a matter of law and equity that he is

entitled to temporary residential or primary custody of the children until such time a hearing to establish father's permanent residential or primary custody is ripe and warranted; or in the alternative, that father has established as a matter of law and equity that he is entitled to permanent residential or primary custody of the children.

After review of the cross-motion, annexed exhibits, and opposition thereto the

court finds as follows:

As a court of limited jurisdiction, the Family Court has only the powers

specifically granted to it by the New York State Constitution. As such, it lacks the power to entertain a declaratory judgment action. See, Edward K. v. Marcy R., 106 Misc 2d 506, 507, 434 N.Y.S.2d 108, 109 (Fam. Ct. Kings County 1980). Furthermore, the court many not enforce an agreement of the parties with respect to custody and visitation, absent an independent finding that the agreement is in the children's best interest. See, Eschbach v. Eschbach, 56 N.Y.2nd 167, 171,451 N.Y.S 2nd 658, 661 (1983).

As a general rule, it is not within the Family Court's jurisdiction to grant a

Declaratory Judgment, as such, the Supreme Court is the proper forum to bring said petition. In addition, the Court will not grant any final orders without the benefit of a full hearing to determine what is in the best interest of the children, in light of the totality of the children's current circumstances. See, Miller v. Pipia, 297 AD2d 362, 364, 746 N.Y.S.2d 729, 731[2nd. [*8]Dep't 2002]; Greenidge v. Henry, 70 AD3d 946, 947, 895 N.Y.S.2d 474, 475 [2nd. Dep't 2010]. A child is not bound by the terms of an agreement between parents as to support and custody, and the courts can modify these terms in the best interest of the child. See, Lehmann v. Lehmann, 182 Misc 2d . 22, 24, 696 N.Y.S.2d 663 [Civ.Ct Kings County 1999].

Accordingly, it is hereby ORDERED, that the respondent-mother's motion is

denied in its entirety, and until a final determination is made after hearing, and /or upon agreement by and between the parties, that the petitioner's cross-motion is denied in its entirety; and it is further

ORDERED, that the subject children shall remain under the jurisdiction of this

Court and the State of New York.

This constitutes the order of this Court.

Dated: January 31, 2011

Brooklyn, New York

______________________________

LISA S. OTTLEY, AJSC

Acting Justice of the Supreme Court