In this custody proceeding brought under the Uniform Child Custody Jurisdiction and Enforcement Act, Petitioner, P.K. (hereinafter "Petitioner") seeks custody of the subject child, P.D.K., born on December 14, 2006. This proceeding was filed on December 21, 2010. The Respondent, S.M. (hereinafter "Respondent") commenced a custody proceeding in Texas on December 22, 2010.

Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter "UCCJEA"), this Court conducted a telephone conference with the Hon. Jill Willis of the Judicial District Court of Collin County, McKinney, Texas. Thereafter, the Texas proceeding was stayed pending a determination by this Court as to whether New York would exercise jurisdiction in this matter. Both parties submitted memoranda of law and affidavits on the issue of jurisdiction.

The parties were divorced in Michigan by Judgment of Divorce entered on September 25, 2009 (hereinafter "Judgment"). The Judgment addressed solely the issues of the distribution of marital property. Thereafter, the Michigan court conducted a trial on January 6-8, 2010, to address the remaining issues of custody, parenting time and child support. The trial was completed but no decision was rendered for reasons which will be addressed below.

It is undisputed that the Respondent moved to Texas in January 2010. She has remarried and has given birth to another child. Pursuant to an interim order of the Michigan Court dated October 6, 2008, the parties had been rotating their parenting time with their son, P.D.K. The child would spend three weeks at a time with each parent. He spent his three week intervals with the mother in Texas and would spend the next three weeks with his father in Michigan. [*2]

It is clear from the parties' submissions that their divorce was a contentious one and that they rarely agree, especially on matters relating to their son. The Petitioner claims that he moved to New York in September 2010. The Respondent asserts that the Petitioner moved in October 2010. In either event, it is clear that New York was not the child's home state under the UCCJEA at the commencement of this action because the child had not lived in this state for six months prior to the commencement. See Domestic Relations Law ("DRL") �75-a(7).

The Petitioner claims that neither New York nor Texas is the child's home state and as such that New York has jurisdiction as the child has significant contacts with this state. The Respondent contends that Texas is the child's home state under the UCCJEA as the child has lived with her since January 2010 and has the most significant contacts.

The Petitioner supports his position that there is no home state for the child by pointing to a Michigan order dated December 9, 2010. In that order, Michigan terminated its jurisdiction over the child custody matter. It is of note that the order sanctions the Petitioner for his move from that state without permission of the court. The order states that the Petitioner should have sought permission of the court prior to relocation so that the Respondent might have had an opportunity to address the question of jurisdiction. Significantly, the Petitioner left at the time in which the Michigan court was prepared to go forward and render a decision on the issues of custody and visitation. Thus, Michigan declined to exercise jurisdiction because neither parent nor the child lived in the state. The Petitioner did not give the Respondent an opportunity to contest the move which may have prejudiced her especially in light of the fact that Michigan had already held a full custody trial. The Michigan order also noted that it had been delayed in rendering a final decision due to the actions of the Petitioner. He had agreed to pay for the cost of the trial transcripts and had delayed doing so for several months.

The Petitioner contends that neither state that the parents now live in can be considered a home state because there was not enough time for home state status to accrue after the Michigan order was entered terminating jurisdiction. He argues, in essence, that since no other state could have had jurisdiction while Michigan did, then no other state could be considered as the child's home state until six months after Michigan terminated jurisdiction. He further points to a December 16, 2010 amendment of the Judgment, which provides that "[t]he domicile or residence of a minor child of these parties shall not be removed from the State of Michigan without the permission of the judge who awarded custody or that judge's successor." After a thorough review of the amendment the Court finds that there is nothing in it which indicates that this provision was vacated as claimed by the Petitioner. Rather, it indicates that the Judgment was modified to include this language as mandated by Michigan law and in what appears to be a response to the Petitioner's departure from Michigan without notice to the Respondent.

It is the Petitioner's contention that this Court must look to the child's significant contacts with each state in order to determine jurisdiction under the UCCJEA, citing DRL §76-f. He contends that P.D.K. has significant ties to New York, including his paternal grandparents and an uncle that live in Nashua, New Hampshire, several hours away. He further claims that P.D.K. has been enrolled in various programs in New York City and that he "would have" been enrolled in a pre-k program in New York. He states that the child has a best friend in New York, who happens to be the child of one of the Petitioner's oldest friends. The Petitioner further relies on what he claims are the Respondent's significant contacts to New York. These purported contacts, however, all occurred in 2009 or earlier and many were actually located in New Jersey. The Court finds that the Respondent [*3]has had no significant contacts to the New York or the tri-state area since moving to Texas in January 2010. While the Petitioner claims that New York contacts far outweigh those in Texas, he states no reason for this conclusion and seems to discount the fact that his child has been living every other three week period with the Respondent in Texas.

The Respondent asserts that Texas is P.D.K. 's home state where, as under Texas' version of the UCCJEA (which mirrors that of New York), physical presence, not subjective intent, is required in making the home state determination. She also lists the child's contacts in Texas. The Respondent has purchased a home in Texas with her husband in which the child lives with the Respondent, his stepfather and sibling. The child has been enrolled in pre-k at the Sand Castle Private School since June 29, 2010. Thus, the child attended that school for approximately six months at the time of the commencement of this action.

In addition, the Respondent lists many instances of what she contends is frightening behavior on behalf of the Petitioner. Among those concerns is her fear that if she allows P.D.K. to visit with his father in New York that he will not return the child to her because of the instant litigation. The record reflects that the Petitioner has only had limited time in New York with P.D.K. as the Respondent has withheld visitation upon commencement of these two custody actions in December.

This Court concurs with the Petitioner in that it is clear that Michigan exercised jurisdiction in this matter until December 9, 2010. Michigan had handled the parties' divorce and the child had lived there predominantly until the Respondent moved to Texas. At that time, the child lived with his mother every three weeks in Texas and every other three weeks with the Petitioner in Michigan until September or October 2010.

This Court's inquiry as to jurisdiction begins as of December 21, 2010, at which time the Michigan court had already divested itself of jurisdiction. Notably, the Petitioner cites no case law to support his position that neither New York nor Texas can have home state status due to Michigan's continued exercise of jurisdiction until December 9, 2010.

The UCCJEA, as set forth in both New York and Texas, defines the term "home state." That definition states: " [h]ome state' means the state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding." DRL § 75-a (7) and Texas Family Code Annotated §152.201 (a) (1).

Under Texas law, the use of the word "lived" in their UCCJEA statute as it relates to home state status looks to physical presence of the child as opposed to domicile or residence which inquiry might complicate the determination of a home state. Powell v. Stover, 165 S.W.3d 322, 326 (Tex. Sup. Ct. 2005). In Powell, the Texas Supreme Court explained that the Legislature used the word "lived" to avoid "complicating the determination of a child's home state with inquiries into the states of mind of the child or the child's adult caretakers." Id., citing Escobar v. Reisinger, 64 P.3d 514, 517 (N.M.Ct.App. 2003). The court further found that "[t]he purposes behind the UCCJEA further suggest that a child's physical location is the central factor to be considered when determining a child's home state.

The UCCJEA further specifies how an initial child custody jurisdiction determination is to be made. It provides:

" . . . . a court of this state has jurisdiction to make an initial child custody determination, only if : [*4]

(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 . . ."See DRL §76. See also Tex. Fam. Code Ann. §§ 152.102(8), 152.201 and 152.202.

Thus, under the provisions of the UCCJEA, it is Texas and not New York that would be considered the child's home state as the child had lived there with the Respondent for almost one year at the time of commencement of both custody proceedings.

While it is true that Michigan had exclusive continuing jurisdiction under the UCCJEA, as it had issued a temporary order of visitation, it specifically declined to exercise jurisdiction when the child and both parents no longer lived in the state. In this matter, it is undisputed that the child lived with the Respondent in Texas since January 2010. Although Texas may have been considered the child's home state as of June 2010, it was Michigan that was in the best position to make decisions regarding the child. Up to that point, the child had lived in Michigan for a large portion of his life and since January 2010 he had spent every other three weeks there until the Petitioner moved to New York in September or October of 2010. Moreover, Michigan had actually tried the matter of custody. When the Petitioner precipitously moved prior to that state's custody determination, jurisdiction had to be determined anew. With no state exercising exclusive continuing jurisdiction, it is clear that Texas was the only "home state" of the child at the time of commencement.

Although this Court is finding that Texas is the child's "home state" under the UCCJEA, it is clear that Texas would also be the state with more significant contacts to this young child, who is four years of age. See Tex. Fam. Code Ann. §§ 152.201(a)(2), 152.207-.208. Over the past fifteen months, P.D.K. has lived in Texas every other three weeks. He has only lived in New York with his father for a very brief period prior to commencement of this action. His mother and stepfather own a home in Texas where he lives with his younger sibling. He attends pre-k in Texas and has never done so in New York.

The Court discounts the alleged significant contacts P.D.K. has to New York as listed by the Petitioner. The child's paternal grandparents and uncle live in another state, which is approximately a three hour drive. In addition, while the Petitioner asserts that the child has a best friend in New York, it is clear to this Court that P.D.K. has most certainly made friends in Texas where he has lived since January 2010 and where he attends pre-k.

Lastly, this Court cannot overlook the fact that the Petitioner has not acted in good faith in the custody proceedings relating to P.D.K. The Michigan order was detailed as to the Petitioner's departure from that state on the eve of the court's decision. By his own actions, the Petitioner forced Michigan to lose jurisdiction and did not give the Respondent a chance to dispute that move or the loss of jurisdiction. This fact is especially significant when one considers that Michigan was clearly familiar with the parties and the custody matter. It had been a contentious divorce case in Michigan and all of the custody issues had been tried. All that remained was for the Michigan court to render its decision. The Petitioner, however, on his own accord, relocated to New York without seeking the prior consent of the Respondent or permission from the Michigan court. Such actions by the Petitioner were highly prejudicial to the Respondent. Not only has he forced the Respondent to have to start from the very beginning on the issue of custody, but he has also forced her to incur additional counsel fees. The last inequity would be to force her to litigate in another state other than the state where she lives with the child. [*5]

Accordingly, where New York was not the child's home state at the time of filing, and where there are no significant contacts to New York, this Court declines to exercise jurisdiction in this matter in favor of Texas, which is the more appropriate forum. See DRL §§ 75-a, 76-f.

This constitutes the decision and order of the Court.

Dated:April 25, 2011

New York, New YorkENTERED:

______________________________

HON. LORI S. SATTLER

JUDGE OF THE FAMILY COURT