PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

Petitioner and respondent are the parents of the subject child, Chaya Mushka Blau. Petitioner commenced this proceeding on October 22, 2014 seeking visitation with the child. Thereafter, respondent filed a motion to dismiss for lack of jurisdiction alleging that the child has not lived in New York for more than six (6) months prior to the commencement of this proceeding. Petitioner cross-moved to amend his petition and for a hearing on temporary [*2]custody ^[FN1] . Petitioner's cross-motion also served as opposition to respondent's motion. Respondent submitted reply papers which opposed petitioner's cross-motion, and petitioner submitted reply papers to respondent's opposition.

It is undisputed that petitioner and respondent were married on July 4, 2006, divorced on February 26, 2009, and that the child was born on June 23, 2007. According to respondent, after the parties separated, respondent and the child moved between New York, New York and Melbourne, Australia from December 2010 to September 2014, residing in both places several months at a time. Most recently, respondent and the child lived in Melbourne from March 19, 2013 to December 16, 2013, then in New York from December 16, 2013 to April 7, 2014. Respondent and the child then went back to Melbourne, from April 7, 2014 to May 14, 2014, before moving back to New York where they resided from May 14, 2014 to September 15, 2014. On September 16, 2014, respondent moved to Chicago with the child. According to respondent, she advised petitioner she would be moving to Chicago.

Respondent argues that this Court lacks jurisdiction, as the child did not reside in New York for six (6) months prior to the commencement of this action, the child has no ties to New York that would indicate that it is her home state, and respondent never intended to remain in New York as her permanent residence. Respondent further argues that New York is an inconvenient forum in that the majority of the evidence is located in Chicago, in order for the attorney for the child to competently represent the child he would have to have access to the child's school and witness the child's day to day life, the child has been in Chicago since September 16, 2014, and it would be detrimental for the child to miss any school for the litigation.

Petitioner opposes respondent's motion to dismiss, arguing that respondent and the child lived in New York from December 2013 until respondent unilaterally moved the child to Chicago, without notice or consent, on September 16, 2014. Petitioner further argues that the child's absence from New York between April and May of 2014 was a temporary absence from New York, not a permanent move to Melbourne. According to petitioner, the child has significant ties with New York in that the child was born in New York, has lived in New York for significant periods of time in the past, has family on both petitioner and respondent's sides in New York, was enrolled in school and engaged in extracurricular activities in New York.

Domestic Relations Law ("DRL") §76 (1) provides that a court in New York has jurisdiction over a custody matter if:

(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 jurisdiction...and:

(i) the child and the child's parents, or the child and at least one parent..., have 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 personal relationships

Here, the child has resided in either New York or Melbourne for the first seven (7) years of her life. The Court notes that on September 9, 2014 petitioner filed a modification petition seeking visitation under docket no. V-23079-14/14A. At that time, the child was residing in New York. Shortly after petitioner commenced such proceeding, respondent moved with the child, from New York to Chicago, on September 16, 2014. Issue was joined and the petition was ultimately dismissed for procedural reasons on October 21, 2014. Immediately following such dismissal, petitioner commenced the instant proceeding the next day on October 22, 2014.

According to respondent, this Court lacks jurisdiction as the child resided in New York for only five (5) months prior to the commencement of this proceeding, and that the child's 5 week absence from New York was a permanent move to Melbourne in that respondent was exploring the possibility of moving to Melbourne. Petitioner, however, argues that the child has resided in New York from December 2013 through September 15, 2014 with a temporary 5 week absence when respondent took the child to Melbourne to visit respondent's family. While respondent argues that the child's absence from New York, between April 7, 2014 to May 14, 2014, was a permanent move to Melbourne, she fails to detail any affirmative steps she took during those 5 weeks to indicate that the child would not be returning to New York. There is no indication that the child was enrolled in school in Melbourne, had a pediatrician in Melbourne, or that respondent obtained a residence in Melbourne. Instead, respondent's papers merely detail her research into Chicago as a permanent residence, which is undisputedly not the child's home state at the time this proceeding was commenced. Moreover, respondent concedes that, between 2010 and 2014, she traveled with the child to Melbourne at least four (4) times; each time returning to New York. Thus, the child's 5 week absence from New York was not a permanent move to Melbourne which would deprive New York of jurisdiction. See Ciccone v Pugh, 42 AD3d 767, 769 (3rd Dep't 2007); see also Felty v Felty, 66 AD3d 64, 70-71 (2nd Dep't 2009). As such, New York is the child's home state pursuant to DRL §75-a(7).

Even if this Court determined that New York was not the child's home state, this Court may nonetheless exercise jurisdiction pursuant to DRL §76 (1)(b). At the time this proceeding was commenced on October 22, 2014, the child resided in Chicago for approximately 5 weeks. Thus, Chicago is not the child's home state pursuant to DRL §76 (1). Likewise, Melbourne is not the child's home state as the child only resided in Melbourne for 5 weeks within the 6 months prior to the commencement of this proceeding. Furthermore, it is uncontested that petitioner has continuously resided in New York since the child was born, his family resides in New York, he has a residence in New York, and he is employed in New York. Moreover, the child was born in [*3]New York, resided here for the first three years of her life, was enrolled in school in New York, was a member of a synagogue in New York, and had a primary care physician in New York prior to her relocation to Chicago. Thus, petitioner and the child have a significant connection to New York. See Warshawsky v Warshawsky, 226 AD2d 708, 709 (2nd Dep't 1996). As such, this Court has jurisdiction to hear this matter.

Respondent argues that even if this Court has jurisdiction, it nonetheless should decline to exercise jurisdiction as New York is an inconvenient forum. Pursuant to DRL §76-f(1), "a court...which has jurisdiction...to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum." To determine whether this state is an inconvenient forum, we must consider several factors, including:

Here, there are no allegations of abuse or maltreatment of the child, and at the time this proceeding was commenced, the child resided in Chicago for a mere 5 weeks. While the parties do not have an agreement as to which state should assume jurisdiction, the parties were previously divorced in New York. Further, should this case proceed to a trial, the evidence is located in both New York and Chicago as the child has been enrolled in school, has formed relationships, and has doctors in both New York and Chicago. However, the child has been appointed an attorney in New York and she has family on both petitioner and respondent's sides in New York. This proceeding was commenced in New York over 5 months ago, and this Court is familiar with the parties, the facts and the issues involved herein. As such, New York is not an inconvenient forum, and respondent's motion to dismiss is denied.

Accordingly, it is

ORDERED that respondent's motion to dismiss is denied in its entirety; and it is further

ORDERED that within 30 days of entry, petitioner shall serve a copy of this decision/order upon respondent with notice of entry.

This constitutes the decision/order of the Court.