Family Court, Kings County, April 8, 2019

John Yacos, New York City, for respondent.

Zachary W. Carter, Corporation Counsel, Family Court Division, Brooklyn (Kathleen Scahill of counsel), for petitioner.

Zachary W. Carter, Corporation Counsel, Family Court Division, Brooklyn (Kathleen Scahill of counsel), for State of California, nonparty.

Children's Law Center, Brooklyn (Melissa Ziegler of counsel), Attorney for the Child.

The motion by respondent [*2]Justin L. (hereinafter putative father), for the dismissal of the instant paternity proceeding based on lack of jurisdiction, is denied.

The following facts are essentially undisputed. In 2012, petitioner Puyi T. (hereinafter mother) met the putative father through the personal ads of Craigslist, therewith engaging in a sexual relationship for several months in Brooklyn, New York. Eventually mother relocated to Los Angeles, California, where on January 4, 2013, she gave birth out-of-wedlock to the subject child. The putative father, who is a litigation attorney, remained residing and apparently practicing in New York.

By uniform support petition dated June 8, 2015, mother commenced the instant paternity proceeding against the putative father pursuant to the Uniform Interstate Family Support Act (UIFSA) (see Family Ct Act art 5-B) through the County of Los Angeles Child Support Services Department, seeking an order of filiation declaring that he is the father of the child and an order of child support. The New York State Child Support Processing Center forwarded this proceeding to the Family Court, Kings County. The Corporation Counsel of the City of New York, assigned to represent the originating Los Angeles jurisdiction, effectuated personal service upon the putative father in Brooklyn on behalf of mother both prior to and at the first appearance on October 15, 2015, in the Family Court. At{**63 Misc 3d at 887} that appearance, the putative father affirmatively waived jurisdictional defenses, and requested genetic marker or DNA testing, which given the infancy of the child, was ordered by order for genetic marker test (Spegele, S.M.). Mother has mostly participated in the proceedings via electronic appearances from California, and the child has been competently represented by the Attorney for the Child, Children's Law Center.

The results of the DNA testing of the putative father, mother and the child were received by the court on February 4, 2016, revealing that the probability of paternity for the putative father of the child was 99.99%. Despite these results, putative father moved for the exclusion of the test results asserting equitable estoppel principles claiming that his Internet research of mother showed that another man was acting as the child's father figure. Both the mother and the Attorney for the Child strenuously opposed the putative father's position, prompting a referral by the Support Magistrate to Family Court Judge Sharon A. Bourne-Clarke for an equitable estoppel hearing. Several adjournments were granted until the hearing was finally scheduled and commenced with mother's testimony on June 30, 2017. The hearing was adjourned to continue on September 26, 2017.

Although the putative father continued participating in the paternity proceedings for more than a year and a half without raising any objections to the Family Court exercising jurisdiction over him, on July 27, 2017, he moved for the dismissal of the proceedings for lack of personal jurisdiction. During the pendency of the hearing, on September 26, 2017, the Family Court (Bourne-Clarke, J.) granted the putative father's motion and dismissed the proceedings. The mother and child appealed that dismissal. By decision and order dated August 22, 2018, the Appellate Division, Second Department, reversed and denied the motion, holding that the putative father "waived his claim that the Family Court did not acquire personal jurisdiction over him" by his affirmative requests for relief and participation (164 AD3d 802, 803 [2d Dept 2018]). Upon Judge Bourne-Clarke's transfer to New York City Civil Court, the matter was assigned to the undersigned, who immediately scheduled the matter for December 19, 2018, for a possible settlement. When no settlement was had, the court ordered an equitable estoppel hearing for March 27, 2019.

By notice of motion returnable March 27, 2019, the putative father again moves for the [*3]dismissal of the proceedings claiming{**63 Misc 3d at 888} that the Family Court lacks personal and subject matter jurisdiction of the proceedings because neither of the parties nor the child currently reside in New York State as mother has continuously lived in California and he moved to Philadelphia, Pennsylvania, during the pendency of the case. Ostensibly raising a "matter of first impression," the putative father specifically argues that New York lacks "continuing, exclusive jurisdiction" over the matter because the obligor, obligee or the subject child must reside in New York at the time of filing in order to modify a child support order, as defined by Family Court Act § 580-205. The mother and the child oppose the motion maintaining that the putative father is misinterpreting UIFSA's relevant sections. After oral argument, the undersigned denied the father's second motion to dismiss, and reserved for a written decision.

After the denial, the putative father withdrew his equitable estoppel objections. The paternity hearing then proceeded as scheduled and, following the testimony of both mother and the putative father, the court (Vargas, J.) issued an order of filiation declaring the putative father to be the father of the child and referred the matter for the determination of child support.

"In 1996, the United States Congress required each state to enact the UIFSA to ensure uniformity in interstate actions for the establishment, enforcement, and modification of spousal and child support orders (see Matter of H.M. v E.T., 14 NY3d 521, 525-526 [2010]). 'New York adopted UIFSA in 1997, designating Family Court as our UIFSA "tribunal" ' (id. at 526; see Family Ct Act § 580-103 [a])" (Matter of Santos v Rivera, 169 AD3d 696, 698 [2d Dept 2019]).

Under UIFSA, a New York court "may exercise personal jurisdiction over a nonresident individual" in "a proceeding to establish or enforce a support order or to determine parentage of a child," if, inter alia,

"the individual is personally served . . . within this state; [or]

"the individual submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document or other action having the effect of waiving any contest to personal jurisdiction; [or] . . .

"the individual engaged in sexual intercourse in {**63 Misc 3d at 889}this state and the child may have been conceived by that act of intercourse" (Family Ct Act § 580-201 [a] [1], [2], [6]).

As to subject matter jurisdiction, the Family Court is "a court of limited jurisdiction" (see Matter of Johna M.S. v Russell E.S., 10 NY3d 364, 366 [2008]; Matter of Olsen v Ucci, 3 AD3d 570, 571 [2004]), but "shall have jurisdiction over . . . the support of dependents except for support incidental to actions and proceedings in this state for marital separation, divorce, annulment of marriage or dissolution of marriage; [and] the establishment of paternity" (NY Const, art VI, § 13 [b] [4], [5]). Indeed, under UIFSA, "[a] tribunal of this state authorized to determine parentage of a child may serve as a responding tribunal in a proceeding to determine parentage of a child brought under this article or a law or procedure substantially similar to this article" (Family Ct Act § 580-402).

Applying these legal principles to the matter at bar, the putative father's eleventh-hour challenge to the Family Court's personal and subject matter jurisdiction fails. Contrary to the putative father's arguments, the Family Court possesses constitutional and statutory authority to hear this case derived from article VI of the New York State Constitution and the UIFSA, embodied in Family Court Act article 5-B. As the Appellate Division already determined as law of the case, this court has personal jurisdiction over the putative father pursuant to Family Court Act § 580-201 (a) (1) and (2), because he was personally served within the state and "enter[ed] a general appearance" at which he did not contest jurisdiction over him. Indeed, this court will add that there is another basis for jurisdiction over father because it is undisputed that the putative father had "sexual intercourse" with mother in New [*4]York and that the conception occurred here (Family Ct Act § 580-201 [a] [6]; see Matter of Dambakly v Patire, 301 AD2d 600, 603 [2d Dept 2003]).

The fact that the putative father decided to relocate to Pennsylvania in July 2017, during the pendency of these proceedings, does not divest the court of jurisdiction. An individual who was subject to Family Court jurisdiction cannot escape the same by moving to another state (see Oster v Oster, 54 AD2d 584 [2d Dept 1976]). "To the contrary, public policy militates against allowing a litigant to divest a court of jurisdiction in a pending action by his own volitional acts" (Caivano v Caivano, 188 Misc 2d 552, 555 [Sup Ct, Nassau County 2001]). This is a fortiori given father's recalcitrant refusal to{**63 Misc 3d at 890} acknowledge legal paternity of the child for almost four years, while continuously participating in the proceedings.

Moreover, as held in Matter of Santos v Rivera (169 AD3d 696 [2019]), the Family Court has clear and unquestionable subject matter jurisdiction—both constitutionally and statutorily—to adjudicate the mother's petition to determine parentage and resulting child support (see NY Const, art VI, § 13 [b] [4], [5]; Matter of H.M. v E.T., 14 NY3d at 527). None of the impediments to jurisdiction is present. The parties here have never been married, and therefore have no pending or possible divorce proceeding. There is no preexisting child support order. As previously held by the Appellate Division, the Family Court has personal jurisdiction over the parties. And, finally, the custodial parent, mother, is a "nonresident individual" who resides in California and has never lived with the child in New York (see Family Ct Act §§ 580-201 [a]; 580-401 [a] [1]).

Nor do Family Court Act §§ 580-202 or 580-205 call for a different conclusion. The putative father contends that those statutory provisions require the instant proceeding to be removed to California or Pennsylvania. However, all those provisions dealing with "continuing, exclusive jurisdiction" (Family Ct Act § 580-202) are only applicable when there is a child support order already in existence and either of the parties commences a new modification or enforcement proceeding of that support order (see Matter of Hyacinthe-Cousins v Hyacinthe, 26 AD3d 379 [2d Dept 2006]). The concept of "continuing, exclusive jurisdiction" clearly implies a prior proceeding. These statutes do not govern over the initial jurisdiction of the Family Court, as here, of a proceeding "to determine parentage of a child" (Family Ct Act § 580-201 [a]).

In accordance with the foregoing, the court denies father's motion to dismiss the paternity proceeding. The matter was respectfully referred to the presiding Support Magistrate to establish the appropriate guidelines order of support against father.