Family Court, Kings County, October 8, 2020

Children's Law Center, Attorney for the Child.

Emily Clarke Kearney for petitioner.

E.S., respondent pro se.

On or about April 5, 2019, the subject child's grandmother filed a petition seeking to modify a prior order setting out visitation between her and her grandson. The petitioner grandmother alleged that the child had moved out of the State of New York on September 26, 2018, to Utah, and as a result, her visitation order needed to be modified. On or about August 28, 2020, the Attorney for the Child (AFC) filed a motion seeking dismissal of the petitioner grandmother's petition for modification of the visitation order issued by Kings County Family Court on January 4, 2017. The petitioner grandmother, through her attorney, responded on or about September 2, 2020. On September 14, this court issued an order dismissing the motion without prejudice because it had not been properly served.

On September 18, 2020, the Attorney for the Child served a new motion seeking dismissal of the petitioner grandmother's petition, accompanied by an affirmation of service that was in compliance with the CPLR. The motion was made returnable on October 2, 2020. As of October 8, 2020, there has been no response to this second motion from either the petitioner grandmother or the respondent mother. Given that the second motion brought by the AFC is identical to the first, the court is considering the grandmother's response to the first motion in this decision. For the reasons outlined below, the motion to dismiss is granted and the petition is dismissed.

The grandmother had previously brought a petition for visitation with the child in 2015. The child's father was deceased and so the grandmother had standing under Domestic Relations Law § 72 (1) to seek visitation with the child. The grandmother and the respondent mother settled the case with an order of visitation which was so ordered by a Kings County Court Attorney-Referee in 2017.{**69 Misc 3d at 948}

In her petition, filed on April 5, 2019, the grandmother alleged that the respondent mother moved out of the State of New York on September 26, 2018, without giving her notice or telling her where she was relocating. She further alleges that she hired a lawyer in October 2018, and that the lawyer hired an investigator to find the respondent mother. The AFC does not dispute these allegations in his motion and, as the mother has not submitted any papers in response, the court accepts as true, for purposes of this motion, the allegations in the grandmother's petition.

In his motion to dismiss, the AFC asserts that the grandmother's petition must be dismissed as this court no longer has jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA is enacted in New York under article 5-a of the Domestic Relations Law. Pursuant to Domestic Relations Law § 76-a, a court of this state which has previously made a child custody determination has "exclusive, continuing jurisdiction" until: "a court of this state . . . determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state." (Domestic Relations Law § 76-a [1] [b].) As the initial order on consent granting visitation to the grandmother was issued in New York, New York would normally have "exclusive, continuing jurisdiction" to modify the order. However, the AFC argues that neither the child, the child's parents, nor any person acting as a parent presently resides in the state. It is undisputed that the mother moved with the child to Utah in September 2018, and that the child's father is deceased. Therefore, neither the child, the child's parents, nor a person acting as a parent presently resides in the state. Nor can the grandmother, who never had legal custody and is not claiming a right to legal custody, be considered a parent for these purposes. (See Matter of Defrank v Wolf, 179 AD3d 676, 677 [2d Dept 2020] ["the maternal great grandmother was not a 'person acting as a parent,' as that term is defined by statute, because she had not been awarded legal custody of the child by a court and did not claim a right to legal custody of the child"].) The court therefore agrees with the AFC that New York no longer has exclusive, continuing jurisdiction.

Even without exclusive, continuing jurisdiction, New York can exercise jurisdiction over the grandmother's petition if New York was the home state of the child within six months prior to the filing of the petition. (Domestic Relations Law {**69 Misc 3d at 949}§§ 76, 76-a [2].) However, the grandmother's petition, dated April 5, 2019, states that the child moved out of state on September 26, 2018—more than six months prior to the filing of the petition. Thus, New York cannot exercise jurisdiction on the basis that New York was the home state within six months prior to the filing of the petition. Another way that New York can exercise jurisdiction even when it has no longer retained exclusive, continuing jurisdiction is when the child does not have a home state. (See e.g. Defrank v Wolf, 179 AD3d at 677; Matter of Breselor v Arciniega, 123 AD3d 1413, 1415 [3d Dept 2014].) In this case, however, the child does have a home state: the child was living in Utah for six months prior to the filing of the grandmother's petition.

The grandmother's petition alleges that she was forced to hire an investigator to find the mother's address, and that presumably was the reason for the delay in her filing her petition in New York. Although the grandmother does not raise this in her answering papers, it would seem, at first blush, that equitable estoppel might apply in this case: the grandmother could have filed her petition at a time that the home state of the child was still New York but for the acts of the respondent mother in not providing an address or information to the grandmother when she moved out of state. (See Zumpano v Quinn, 6 NY3d 666, 674 [2006] ["equitable estoppel will apply 'where plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action' " (citation omitted)].)

The court concludes, however, that the situation here is more similar to the situation described in Lozano v Montoya Alvarez (572 US 1 [2014]). Lozano involved a father bringing a Hague Convention case in the United States. The mother of the child had left Italy with the child and, because she was hiding from the father, he was not able to file his case for the return of the child until more than a year after the child had been in the United States. With certain limited exceptions, when a Hague Convention case is brought within one year, the court must return the child to the country of his or her habitual residence. If the case is brought after a one-year period, the child need not be returned if it is demonstrated that the child is "settled" in the new country. In Lozano, the father argued that the Court should not apply the "settled" standard since the only reason that he brought the case after a year had passed was because of the mother's actions in hiding the child.{**69 Misc 3d at 950}

Writing for the Court, Justice Thomas distinguished the International Child Abduction Remedies Act (22 USC § 9001 et seq.), the legislation implementing the Hague Convention Treaty, from situations in which equitable estoppel will serve as a defense to a dismissal based on the statute of limitations.^[FN*] Justice Thomas pointed out that a dismissal based on the statute of limitations results in a complete denial of access to the courts. The concept of equitable estoppel prevents a defendant or wrongdoer from taking affirmative steps to prevent a plaintiff from bringing an action and then having the action dismissed on the grounds of the statute of limitations. (Zumpano v Quinn, 6 NY3d at 674.) However, although parents in a Hague Convention case may be placed in a more disadvantageous position than they would be otherwise, i.e., they might have to litigate the [*4]custody case in a foreign jurisdiction, the court doors are not closed to them. As Justice Thomas explained:

"Unlike the 3-year lookback period in Young, expiration of the 1-year period in Article 12 does not eliminate the remedy the Convention affords the left-behind parent—namely, the return of the child. . . . Rather than establishing any certainty about the respective rights of the parties, the expiration of the 1-year period opens the door to consideration of a third party's interests, i.e., the child's interest in settlement. Because that is not the sort of interest addressed by a statute of limitations, we decline to treat the 1-year period as a statute of limitations." (Lozano v Montoya Alvarez, 572 US at 14-15.)

The grandmother in this case is in a similar situation to that of the father in Lozano. A determination that New York no longer has jurisdiction under the UCCJEA does not "eliminate the {**69 Misc 3d at 951}remedy" available to the grandmother. Understandably, she would prefer to litigate her visitation petition in New York where she resides. However, a dismissal of her petition in New York, which no longer has jurisdiction as neither the child nor his parents resided in New York during the six months preceding the filing of the petition, only means that the grandmother must seek relief in the courts of Utah, where her grandson has been residing and which is his home state under the UCCJEA. (Domestic Relations Law § 76.)

For these reasons, the motion of the Attorney for the Child is granted, and the grandmother's petition is dismissed.