Supreme Court, Westchester County, July 11, 2025

OPINION OF THE COURT

James L. Hyer, J.

{**88 Misc3d 796}Motion by order to show cause of the defendant, dated February 21, 2025 (hereinafter mot seq No. 2), seeking the entry of an order granting the following relief:

1. Enforcing the agreement between the parties as to custody, visitation, and child support for the time in New York, and to the forum of any matrimonial matter initiated in calendar year 2024 being required in the State of Maryland; and

2. Pursuant to Domestic Relations Law § 76-e: (a) staying the adjudication of the custody issues, (b) communicating with the Circuit Court of Maryland pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and (c) dismissing the custody claims upon the Circuit Court's acceptance of jurisdiction since a prior pending custody action is pending in the Circuit Court of Maryland; or, in the alternative,

3. Declining custody jurisdiction under Domestic Relations Law § 76-f.

Relevant Factual and Procedural Background

This matrimonial action was commenced on August 26, 2024, with the plaintiff's filing of a summons with notice^FN1 (hereinafter summons) seeking a judgment against the defendant dissolving the marriage between the parties to this action pursuant to New York State Domestic Relations Law § 170 (7) asserting that the parties' relationship had irretrievably broken down for a period in excess of six months and requesting other ancillary relief, including "sole custody of the parties four unemancipated children of the marriage,"^FN2 along with the following supporting documents: (1) maintenance guidelines worksheet; (2) notice concerning continuation of health care coverage; and (3) notice of automatic orders.^FN3

On October 18, 2024, defendant began a separate divorce proceeding^FN4 (hereinafter Maryland Custody Action) seeking child custody and child support in Maryland Circuit Court, Howard County, and served plaintiff with that action on November 4, 2024. At that time, the Maryland Custody Action was unknown to this court.

{**88 Misc3d 797}On October 21, 2024, defendant filed a demand for complaint^FN5 (hereinafter demand for complaint).

On November 5, 2024, plaintiff filed a request for judicial intervention^FN6 (hereinafter RJI) and a verified complaint^FN7 (hereinafter complaint) wherein plaintiff asserts the following:

"2. The Plaintiff has resided in New York State for a continuous period of at least one (1) year immediately preceding the commencement of this divorce action and the cause of action giving grounds for divorce occurred in New York. . . .

"5. There are four (4) emancipated children of the marriage, to wit: A.L. (born XX/XX/XXXX), H.L. (born XX/XX/XXXX), I.L., (born XX/XX/XXXX), and G.L. (born on XX/XX/XXXX). There are no further children of the marriage expected.

[*2]

"6. Plaintiff resides at XXXXXX,XXXXXX, Scarsdale, New York. Defendant resides at XXXXXX,XXXXXX, Columbia, Maryland XXXXX. . . .

"8. The grounds for divorce are that the relationship between Plaintiff and Defendant has broken down irretrievably for a period of at least six (6) months pursuant to DRL § 170 (7)."

On November 12, 2024, a court notice^FN8 was issued directing a preliminary conference to be held on November 27, 2024.

On November 26, 2024, defendant filed a verified answer^FN9 (hereinafter answer), wherein defendant denied the allegations set forth in paragraph 2 of the complaint, denied knowledge or information sufficient to form a belief as to defendant's address and asserted five affirmative defenses including:

"AS AND FOR A FIRST AFFIRMATIVE DEFENSE

"11. The Complaint fails to state a claim upon which relief can be granted.

"AS AND FOR A SECOND AFFIRMATIVE DEFENSE

"12. The Court lacks subject matter jurisdiction over this matter.

"AS AND FOR A THIRD AFFIRMATIVE DEFENSE

"13. The Court lacks personal jurisdiction over the Defendant.

"AS AND FOR A FOURTH AFFIRMATIVE DEFENSE

"14. The action is barred by a pending action in Howard County, Maryland.

"AS AND FOR A FIFTH AFFIRMATIVE DEFENSE

"15. The action is barred by a jurisdiction and venue agreement entered into by the parties that provides that any action for divorce or custody commenced in 2023 and 2024 must be maintained in the forum where the Defendant resides in which is Howard County, Maryland."

On November 26, 2024, defendant's counsel filed a pre-motion conference request^FN10 (hereinafter pre-motion request) seeking to dismiss the complaint on the following grounds:

"* Failure to meet the residency requirements under DRL§ 230(1), DRL § 230(2), DRL § 230(3) or DRL § 230(4). The plaintiff has resided in New York for less than year (and under any circumstances not two years). And, the cause of action has not accrued in New York. Finally, E.L. has never resided in New York and resided at the time of filing in Howard County, Maryland;

"* A prior action, as defined by CPLR § 3211(a)(4), was filed in the Circuit Court, Howard County, Maryland. While the Plaintiff filed a summons with notice prior to the commencement of the Maryland action, the Complaint was not served until after the commencement of the Maryland action. Wharton v. Wharton, 244 A.D.2d 404, 405, 664 [*3]N.Y.S.2d 73, 73 (2d Dept.1997) ('However, although the prior action was commenced by the husband in 1990 by service of a summons with notice, he served no complaint in that action. Accordingly, the 1990 action did not constitute a prior pending action within the meaning of CPLR 3211(a)(4)'); see also 255 San Ysidro Corp. v. Robinow, 1 A.D.3d 185, 768 N.Y.S.2d 191 (1st Dept. 2003) ('[T]he filing of a summons with notice, absent the service of the complaint does not constitute commencement under CPLR 3211(a)(4)'); and

"* In an exchange of emails constituting a binding {**88 Misc3d 799}agreement, the parties agreed that any action commenced in 2023 or 2024 related to divorce or custody, must be commenced where E.L. resides (if it is within the 'DMV' [Delaware, Maryland and Virginia])."

The court entered an order^FN11 (hereinafter Nov. 26, 2024 order) scheduling a pre-motion conference to be held on November 27, 2024, at 9:00 a.m., which was held, wherein all parties and counsel appeared, after which an order^FN12 (hereinafter Nov. 27, 2024 order) was entered setting forth a briefing schedule.

On December 13, 2024, defendant filed motion sequence No. 1,^FN13 seeking the above-referenced relief. On December 27, 2024, plaintiff filed submissions in opposition to motion sequence No. 1.^FN14

On January 12, 2025, a decision and order on motion sequence No. 1 was entered^FN15 (hereinafter Jan. 12, 2025 decision), directing the following:

"Plaintiff has set forth in her sworn affidavit ample support to reflect her continued domicile in the State of New York for the duration required to meet the residency requirements of DRL § 230. It is undisputed that Plaintiff moved to the Bedford Property in August of 2023, and then to the Scarsdale Property in August of 2023. It is also undisputed that the parties' children were enrolled in school at both locations and remain enrolled in school within New York State. Finally, it is undisputed that Plaintiff spent several months in the State of Florida during the 2024 year to be with her dying father and while Defendant asserts that Plaintiff did not intend to return to the State of New York, Plaintiff asserts that she did intend to return and left her belongings within the State of New York at her parents' home in New York.

"Accordingly, based upon the submissions made to this Court, it is determined that Defendant's requested dismissal of Plaintiff's Complaint for alleged failure to meet the residency requirements of DRL § 230 is denied as the Court determines that {**88 Misc3d 800}Plaintiff has provided support that she has met the residency requirement pursuant to DRL § 230 (3). . . .

"Here, Plaintiff has established that Defendant has the necessary minimum contacts with the State of New York established through Defendant's continued actions pertaining to the parties' children including permitting their enrollment in school at the Bedford Property; permitting their enrollment in school at the Scarsdale Property; and visiting with the children in the State of New York.

"Accordingly, based upon the submissions made to this Court, it is determined that Defendant's requested dismissal of Plaintiff's Complaint for alleged lack of jurisdiction of this Court is denied."

On February 3, 2025, a preliminary conference was held, and an order was entered into,^FN16 wherein all parties and counsel appeared to discuss an initial discovery schedule in this matter.

On February 21, 2025, defendant filed motion sequence No. 2,^FN17 by order to show cause, and supporting documentation, seeking the entry of an order granting the above-referenced relief.

On February 24, 2025, defendant's order to show cause was conformed by this court,^FN18 directing: (1) defendant shall serve a copy of the conformed order and motion papers on plaintiff on or before February 25, 2025; (2) plaintiff shall serve any opposition and/or cross-motion to defendant's application by March 10, 2025; and (3) defendant shall serve any answering papers to any cross-motion by March 24, 2025, which was made the return date of motion sequence No. 2, at which time no personal appearances were necessary.

On March 10, 2025, plaintiff filed opposition^FN19 to motion sequence No. 2; no cross-motion was filed.

On April 7, 2025, defendant filed a letter^FN20 (hereinafter defendant's Maryland decision letter) with this court, directing the court's attention to an attached decision, dated April 4, 2025, from the Circuit Court for Howard County, State of Maryland ({**88 Misc3d 801}L.C.Weathersbee, MD Circuit Court Judge) regarding a "Motion to Dismiss Plaintiff's Complaint" filed by the defendant in that action (plaintiff in our action). The application in Maryland was based on the argument that New York was the home state of the children rather than a finding that there is no home state, and pertinent portions of that order (hereinafter Maryland decision) read as follows:

"Maryland courts have jurisdiction to make an initial determination of custody in this matter. At the time of the filing for custody on October 18, 2024, no state was the home state of the children per the UCCJEA definition. The last state that was the home state of [*4]the children was Colorado but neither parent nor the children reside there any longer. New York was a temporary absence and not a move to establish the children's home. The purpose for the New York stay was to permit Mother to care for her ailing father, which she did first in New York and then in Florida. This fact is supported by the fact that Mother had no place to live during the period between May 2024 and August 2024, as well as the parties' agreement on the issue. In the six months preceding October 18, 2024, the period between April 18, 2024, and October 18, 2024, the children lived in New York for a month, then Florida and Maryland, and then Maryland, and then New York. The parties then began to disagree about where the children would reside. Mother filed for divorce in New York in November of 2024. Maryland has subject matter jurisdiction via UCCJEA 9.5.201 (a) (4).

"The only other potential conference of jurisdiction is per UCCJEA 9.5.201 (a) (2) as no other state is the home state of the children, and the children and Father have a more significant connection with the state of Maryland then they do in the state of New York. The children were born in D.C., both parties are employed by employers in D.C., the parties stated their intent to be subject to Maryland jurisdiction, the children have a dentist in Howard County, they were enrolled in Howard County schools for a short period, Father has owned a residence in Howard County, Maryland, since April 2024, and the children have been in his custody {**88 Misc3d 802}there for portions of the last six months."^FN21

The subject letter from defendant was filed after the return date of this motion, after the point of time which papers could be submitted for consideration, but nonetheless was considered by the court.

On April 8, 2025, plaintiff filed a letter^FN22 (hereinafter plaintiff's Maryland decision letter) responding to the decision of the Circuit Court of Maryland, and addressing the letter filed by defendant. The subject letter from plaintiff was filed after the return date of this motion, after the point of time which papers could be submitted for consideration, but nonetheless was considered by the court.

No other documents were submitted to this court for consideration regarding motion sequence No. 2.^FN23

Legal Analysis

A. Defendant's Argument That This Court Must Dismiss the Custody Claims of Plaintiff, Based on a Claim That the Maryland Action was "Commenced" First

[*5]

1. Timing and Commencement of the Custody Proceedings

Domestic Relations Law § 211 provides "[a] matrimonial action shall be commenced by the filing of a summons with the notice designated in section two hundred thirty-two of this chapter, or a summons and verified complaint as provided in section three hundred four of the civil practice law and rules." (Emphasis added.) Similarly, the New York Civil Practice Law and Rules set forth that "[a]n action is commenced by filing a summons and complaint or summons with notice" (CPLR 304 [a]). It is well-established in the Appellate Division, Second Department, that commencement is upon "filing" rather than "service" (Matter of Winston v Freshwater Wetlands Appeals Bd., 224 AD2d 160 [2d Dept 1996]), the same contention being confirmed by the Court of Appeals as well (Jones v Bill, 10 NY3d 550 [2008]; Perez v Paramount Communications, 92 NY2d 749 [1999]). The "[c]ommencement of a custody proceeding, {**88 Misc3d 803}for purposes of the UCCJA, means the date of filing, not the date of service of process upon the defendant" (Evans v Evans, 208 AD2d 223, 227 [4th Dept 1995]).

Defendant movant directs this court to Domestic Relations Law § 75-a (5), which defines the term "commencement" as "the filing of the first pleading in a proceeding." Additionally, defendant cites to CPLR 3011, which provides for a definition of what a pleading is and makes clear that a "summons with notice" is not defined as a "pleading" pursuant to CPLR 3011. Defendant argues that this definition requires the court to determine that the filing of the plaintiff's summons with notice should not be considered the commencement date of this proceeding, as it is not a "pleading." Instead, defendant argues that the "commencement" of the underlying matrimonial action and custody litigation was commenced on the date the verified complaint was filed, November 5, 2024.^FN24 Defendant bases all other jurisdictional arguments herein around the timeframe that the underlying action in New York was commenced on November 5, 2024, rather than August 26, 2024, when the summons with notice was filed.^FN25

In support of this contention, defendant cites to two areas of New York State case law: (1) cases which discuss relief requested pursuant to CPLR 3211 (a), seeking to dismiss a complaint; and (2) relief requested pursuant to CPLR 3217, seeking a voluntary discontinuance without need of judicial order. At first blush, it is clear that none of the case law cited in support of defendant's contention discusses the UCCJEA, New York's codification of same (Domestic Relations Law art 5-A), or support from the Appellate Division, Second Department.

Defendant cites to two trial level decisions in NGH Assoc., Ltd. v United Parcel Serv., Inc. (17 Misc 3d 746 [Sup Ct, Nassau County 2007]) and Abreu v Daddona (67 Misc 3d 1207[A], 2020 NY Slip Op 50446[U] [Sup Ct, Nassau County 2020]) which stand for the premise that if a matter is commenced by way of summons with notice, a motion pursuant to CPLR 3211 (a) seeking to dismiss a complaint is rendered moot, as there is no complaint filed to factually review for dismissal (NGH Assoc., Ltd., 17 Misc 3d at 749; Abreu, 2020 NY Slip Op 50446[U], *4). While these cases determine that a summons with notice is not, by definition, a "pleading," they in no way relate to the application of same to the Domestic Relations Law, the UCCJEA, or custody determinations. Moreover, these cases do not amend, change or clarify in any way the directives of Domestic Relations Law § 211, which sets forth that commencement of a matrimonial action may be by summons with notice.[*6]

Furthermore, defendant cites to two Appellate Division, First Department cases, which discuss a "summons with notice" in the context of seeking a voluntary discontinuance of an action without judicial order, pursuant to CPLR 3217. Again, while these cases do determine that a summons with notice is not, by definition, a pleading, the holdings are specific to an application within the context of CPLR 3217, and in no way relate to the application of a summons with notice to the Domestic Relations Law, the UCCJEA, or custody determinations. (McMahon v McMahon, 279 AD2d 346 [1st Dept 2001]; Giambrone v Giambrone, 140 AD2d 206 [1st Dept 1988].) Similarly, these cases do not amend, change or clarify in any way the directives of Domestic Relations Law § 211, and its permission regarding commencing matrimonial actions in New York by way of summons with notice.

(a) Statutory Interpretation

"When presented with a question of statutory interpretation, our primary consideration is to ascertain and give effect to the intention of the [l]egislature" (Matter of Lynch v City of New York, 40 NY3d 7, 13 [2023] [internal quotation marks omitted], citing Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653 [2006]). " 'The starting point for discerning legislative intent is the language of the statute itself.' That is, 'the literal language of a statute controls "unless the plain intent and purpose of [the] statute would otherwise be defeated" ' " (id. [citation omitted]). "We must also consider the statute as a whole, ' "and effect and meaning must, if possible, be given to the entire statute and every part and word thereof" ' " (id., citing People v Pabon, 28 NY3d 147, 152 [2016]).

However,

"[a] strict and literal interpretation is not always to be adhered to, and where the case is brought within the intention of the makers of the statute, it is within the statute, although by a technical interpretation it is not within its letter. It is the spirit and purpose of a statute which are to be regarded in its interpretation; and if these find fair expression in the statute, it should be so construed as to carry out the legislative intent, even although such construction is contrary to the literal meaning of some provisions of the statute. A reasonable construction should be adopted in all cases where there is a doubt or uncertainty in regard to the intention of the lawmakers" (Westchester County Socy. for Prevention of Cruelty to Animals v Mengel, 266 App Div 151, 154-155 [2d Dept 1943] [citations omitted]).

"It is the spirit, the object, and purpose of the statute which are to be regarded in its interpretation" (Miglino v Bally Total Fitness of Greater N.Y., Inc., 92 AD3d 148, 157 [2d Dept 2011] [brackets omitted], citing Westchester County Socy. for Prevention of Cruelty to Animals v Mengel, 266 App Div 151 [2d Dept 1943]).

Here, the legislative intent of the UCCJEA, as codified in Domestic Relations Law § 75, is provided as follows:

"1. This article may be cited as the 'uniform child custody jurisdiction and enforcement act'.

"2. It is the intent of the legislature in enacting this article to provide an effective mechanism to obtain and enforce orders of custody and visitation across state lines and to do so in a manner that ensures that the safety of the children is paramount and that victims of domestic violence and child abuse are protected. It is further the intent of the legislature that this article be construed so as to ensure that custody and visitation by perpetrators of domestic violence or homicide of a parent, legal custodian, legal guardian, sibling, half-sibling or step-sibling of a child is restricted pursuant to subdivision one-c of section two hundred forty of this chapter and section one thousand eighty-five of the family court act." (Emphasis added.)

[*7]

Relevant case law from the Appellate Divisions of the New York State expand on this legislative purpose, "[s]pecifically, section 76 of the Domestic Relations Law forms the foundation of the UCCJEA and governs virtually every custody proceeding. It is designed to eliminate jurisdictional competition between courts in matters of child custody and the substantial confusion that arose under its predecessor, the UCCJA" (Matter of Michael McC. v Manuela A., 48 AD3d 91, 95 [1st Dept 2007] [emphasis added]).

The Appellate Division, Second Department in Matter of Felty v Felty (66 AD3d 64 [2d Dept 2009]) clearly delineates the purpose of New York adopting the UCCJEA:

"New York's adoption of the UCCJEA was intended to accomplish three principal goals. First, it was designed 'to obtain and enforce orders of custody and visitation across state lines and to do so in a manner that ensures that the safety of the children is paramount and that victims of domestic violence and child abuse are protected'. Second, it was designed to eliminate any jurisdictional competition between courts and strengthen jurisdictional certainty in child custody proceedings (see Matter of Michael McC. v Manuela A., 48 AD3d 91, 95 [2007]; Stocker v Sheehan, 13 AD3d 1, 4 [2004]; EB v EFB, 7 Misc 3d 423, 432 [2005], affd sub nom. Bjornson v Bjornson, 20 AD3d 497 [2005]). Third, it was designed to resolve any inconsistencies and conflict between its predecessor" (id. at 69 [some citations omitted and emphasis added]).

In addition to the legislative intent of the Domestic Relations Law, the commentaries on CPLR 3011 as it relates to the definition of a "pleading" make clear that

"the benevolent CPLR 3011 can sometimes be more confusing than helpful. Whenever there is a conflict between the captioning function of CPLR 3011 and some other more specific provision, or even basic tenets of common sense, it is the latter that should control. The kind of claim or defense that may be interposed in an action is more important than what it is called, and CPLR 3011 is more concerned with what it is called. It has been observed that the 'rights of parties are not ultimately determined by the names given their pleadings' and that problems of mere labeling can be minimized by noting the broad discretion the court has . . . 'to amend and supplement pleadings' " (Patrick M. Connors, Prac Commentaries, McKinney's Cons Laws of NY, CPLR C3011:1 [emphasis added], citing Axelrod & Co. v Telsey, 77 Misc 2d 1035 [Sup Ct, NY County 1973]).

It is the intent, spirit and purpose of these statutes that need to be made a priority over the strict interpretation of the statute itself. A review of the intention of the legislature in enacting the UCCJEA and of New York's adoption of same within the Domestic Relations Law makes clear that one of the main tenets of the statute is to prevent confusion between courts with respect to custody jurisdiction, to eliminate any jurisdictional competition between courts and to strengthen jurisdictional certainty. This court finds that the purpose of commencement in the purview of the UCCJEA is to provide notice to the court of a certain jurisdiction that a custody proceeding has been initiated. In turn, that notice by commencement would prompt an evaluation regarding custody jurisdiction of the pending court. Specifically, the commencement would begin the process necessary pursuant to the UCCJEA to determine if said court should properly hold custody jurisdiction over a particular action. Moreover, assuming there was another custody proceeding pending in another jurisdiction, commencement should provide to the subject court the necessary information (pursuant to Domestic Relations Law § 76-h) to evaluate if there are simultaneous proceedings, and to prevent dualling, and potentially conflicting, custody determinations.

Here, this court finds that plaintiff's summons with notice provided such necessary information and requests for relief to this court on August 26, 2024. To interpret Domestic Relations Law § 75-a (5) in rejecting a summons with notice as the "commencement" of this proceeding would run afoul of the true spirit and intent of the UCCJEA/Domestic Relations Law and this specific section of same, regarding the [*8]evaluation of custody jurisdiction. This court chooses not to interpret the statute in that manner.

(b) Judicial Estoppel

Importantly, while defendant seeks to pursue the position that the Maryland Custody Action was first-in-time, he has previously admitted on at least three occasions to the fact that the subject action was commenced first, on August 26, 2024, by indicating same within his complaint filed in the Maryland Custody Action:

"On Monday, August 26, 2024, at 10:41 a.m., unbeknownst to the Plaintiff, Defendant filed for Divorce in New York, Westchester County, Index No.: XXXXX/XXXX";^FN26

"On September 2, 2024, the parties attempted to negotiate an amendment to the Agreement regarding custody of the Minor Children during the upcoming school year. At this time, Plaintiff [defendant in the underlying action] was unaware of the pending divorce action in New York";^FN27 and,

"The Defendant has initiated Divorce proceedings in New York State, under Index No.: XXXXX/XXXX."^FN28

The Maryland complaint was affirmed and signed by the defendant (as plaintiff therein) and as such is a prior sworn to statement of the defendant. It asserts that this action was filed on August 26, 2024, and that these divorce proceedings were "initiated" prior to the filing of the complaint in the Maryland Custody Action, which was filed on October 18, 2024. Defendant now seeks to assert the opposite interpretation, which this court finds he is judicially estopped from pursuing.

"Judicial estoppel, or the doctrine of inconsistent positions, precludes a party who assumed a certain position in a prior legal proceeding and who secured a judgment in his or her favor from assuming a contrary position in another action simply because his or her interests have changed" (Ford Motor Credit Co. v Colonial Funding Corp., 215 AD2d 435, 436 [2d Dept 1995]). The doctrine rests upon the principle that "a litigant 'should not be permitted . . . to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise' " (Environmental Concern v Larchwood Constr. Corp., 101 AD2d 591, 593 [2d Dept 1984] [citations omitted]). The courts invoke this doctrine "to estop parties from adopting such contrary positions because the judicial system cannot tolerate this playing fast and loose with the courts" (Prudential Home Mtge. Co. v Neildan Constr. Corp., 209 AD2d 394, 395 [2d Dept 1994] [internal quotation marks omitted]). The doctrine of judicial estoppel has been applied in matrimonial actions where appropriate (Canzona v Canzona, 142 AD3d 1030 [2d Dept 2016], citing Ligreci v Ligreci, 5 AD3d 205 [1st Dept 2004]).

It appears that the April 4, 2025 decision^FN29 issued in the Maryland Custody Action, denying the application to dismiss the defendant husband's complaint in that matter, was, in part, based on defendant's contentions within his Maryland complaint that he was blindsided by [*9]a New York venued divorce action for custody of his children, which was commenced prior to his application therein. In the Maryland Custody Action, defendant secured the judgment of the Maryland decision wherein he asserted the subject position. As a result, this court finds that defendant should be estopped from now asserting a contrary position herein in an effort to argue his case was "commenced" first, for purposes of analyzing jurisdiction under the UCCJEA.

However, even assuming defendant was not estopped from taking the contrary position that this matter was commenced second-in-time to the Maryland Custody Action, this court still finds that the underlying action was commenced first for purposes of applying the true purpose and legislative intent of the UCCJEA. As permitted by Domestic Relations Law § 211 and CPLR 304 (a) plaintiff commenced the underlying matrimonial action by way of filing a summons with notice on August 26, 2024. Notwithstanding the definition of the term "commencement" within the Domestic Relations Law and defendant's contrary position herein, this court has been provided no support to defer from this commencement determination.

2. Compliance with the Parties' and Courts' Obligations Pursuant to the UCCJEA in Situations of Simultaneous Custody Proceedings

New York's codification of the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter UCCJEA) is set forth within article 5-A of New York State Domestic Relations Law, specifically titles I-IV.^FN30 Of note to the instant application, the State of Maryland has also adopted the UCCJEA, which has been identically codified within Maryland Code Annotated, Family Law title 9.5 (subtitles 1-3). Initial to this court's analysis is an overview of custody jurisdiction, and an examination of the parties' and the courts' responsibilities under the relevant provisions of the UCCJEA and Domestic Relations Law.

(a) Mandatory Information Submitted to the Court

Domestic Relations Law § 76-h (1) directs the following:

"Information to be submitted to court

"1. Subject to subdivision five of this section, in a child custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child's present address or whereabouts, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit must state whether the party:

"(a) has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child custody determination, if any;

"(b) knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding; and

"(c) knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or [*10]visitation with, the child and, if so, the names and addresses of those persons."^FN31 (Emphasis added.)

Domestic Relations Law § 76-h (4) directs the following: "4. Each party has a continuing duty to inform the court of any proceeding in this or any other state that could affect the current proceeding."^FN32 (Emphasis added.)

Here, defendant filed his complaint for custody in Maryland Circuit Court on October 18, 2024, and served plaintiff with that complaint on November 4, 2024;^FN33 however it was not until the filing of the instant motion on February 21, 2025, four months after the filing of the Maryland complaint and almost three months after service of the same on the plaintiff that the court was properly provided all necessary information regarding the Maryland Custody Action.

On November 5, 2024, plaintiff had an opportunity to comply with the tenets of Domestic Relations Law § 76-h in providing necessary information to this court regarding the custody proceeding pending in Howard County, Maryland, having been served with same the prior day, but failed to provide any information whatsoever in the complaint regarding the other custody proceeding, in violation of the statute. Thereafter, defendant similarly had an opportunity to provide the appropriate information to this court on November 26, 2024, within his answer, but instead simply provided within an affirmative defense "[t]he action is barred by a pending action in Howard County, Maryland."^FN34

On November 16, 2024, defendant filed the pre-motion request with this court related to motion sequence No. 1, which provided some information in identifying "a prior action as defined by CPLR 3211(a)(4), was filed in the Circuit Court, Howard County, Maryland"^FN35 but again failed to comply with Domestic Relations Law § 76-h, in specifically "identify[ing] the court, the case number, and the nature of the proceeding" (Domestic Relations Law § 76-h [1] [b] [emphasis added]). Similarly, defendant's motion sequence No. 1,^FN36 filed on December 13, 2024, was devoid of any further information or attached documentation, which would have provided this court with full and appropriate "information" regarding the Maryland Custody Action pursuant to Domestic Relations Law § 76-h.

Thereafter, this court was only made aware by the filing of the instant application on February 21, 2025, specifically defendant's choice to attach as "Exhibit N" to the pending application the complaint from the Maryland Custody Action, at which time there was finally full compliance with Domestic Relations Law § 76-h.

This court notes that the Circuit Court for Howard County, Maryland certainly had notice of the underlying matter, including the county and index number of this action, on [*11]October 18, 2024, when the defendant's complaint was filed in the Maryland Custody Action. The complaint filed in that action clearly provides information regarding this action within the first page of that document, titled "Civil—Domestic Case Information Report," specifically the portion of that page which asks the question "RELATED CASE PENDING?," of which the box labeled "Yes" had an "X" inserted, and the following information was included: "NY # XXXXX/XXXX."^FN37 This court interprets this notation within the Maryland complaint to mean that there was another action pending in New York State which is related to the issues outlined before the Maryland court, namely "custody," "child support," and "visitation."^FN38 Additionally, throughout the complaint the defendant (plaintiff in that action) advised that a prior divorce action, seeking ancillary relief, was previously pending within the State of New York, County of Westchester and bearing index No. XXXXX/XXXX.^FN39 It is possible that defendant was not clear enough regarding the issues being litigated in New York at the time of filing the Maryland Custody Action; however to this court it appears the directives of Domestic Relations Law § 76-h (Md Code Ann, Fam Law § 9.5-209 [a]) were complied with in the Maryland Custody Action.

As a result, given this court's prior determination that the Maryland Custody Action was second-in-time to the subject matter, the court in that action had an obligation, with the information provided to it, to comply with the provisions of the UCCJEA regarding simultaneous custody proceedings.

(b) Simultaneous Proceedings and Communication Requirement

Domestic Relations Law § 76-e (1)-(2) discuss the obligations of the court when there are "simultaneous proceedings" between jurisdictions:

"1. Except as otherwise provided in section seventy-six-c [§ 76-c] of this title, a court of this state may not exercise its jurisdiction under this title if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this article, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under section seventy-six-f [§ 76-f] of this title.

"2. Except as otherwise provided in section seventy-six-c [§ 76-c] of this title, a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to section seventy-six-h [§ 76-h] of this title. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this article, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this article does not determine that the court of this state is a more appropriate forum, the [*12]court of this state shall dismiss the proceeding."^FN40

Pursuant to statute, a court is duty-bound prior to making a custody jurisdiction determination to review the mandatory information submitted by the parties as outlined hereinabove, and following said review, if it is determined that a prior child custody proceeding has been commenced within a court of another state having jurisdiction substantially in accordance with the UCCJEA, to stay this proceeding and communicate with the court of the other state to discuss custody jurisdiction prior to making such a determination (Domestic Relations Law § 76-e; Matter of Williams v Taylor, 20 AD3d 484 [2d Dept 2005]; Matter of Guzman v Guzman, 92 AD3d 679, 680-681 [2d Dept 2012] ["(W)hen the mother subsequently commenced a custody proceeding with respect to the subject child in the Circuit Court, Seventh Judicial Circuit, in and for Volusia County, Florida (hereinafter the Florida court), the Florida court determined that Florida was an inconvenient forum and that New York was the more appropriate forum . . . (W)here custody proceedings relating to a child are pending in different states—in this case, New York and Florida—Domestic Relations Law § 76-e applies, and the courts of the two states must confer with each other" (citations omitted and emphasis added)], citing Matter of Javier v Javier, 264 AD2d 735 [2d Dept 1999]).

The courts have held that "substantial conformity" with the provisions of New York's Domestic Relations Law article 5-A includes another "jurisdiction that was either the 'home state' when the proceeding was commenced or satisfies one of the other jurisdictional predicates of section 76" (Matter of Michael McC. v Manuela A., 48 AD3d 91, 97 [1st Dept 2007], citing Kilcullen v Bubanj, 116 AD2d 470 [1st Dept 1986] [wherein given the absence of a jurisdictional predicate for Pennsylvania court (as foreign jurisdiction) to make custodial determination, it was unnecessary for the New York trial court to stay its action]; see also Matter of Uhl v Uhl, 244 AD2d 935 [4th Dept 1997] [wherein the Court held that for a proceeding in another state to result in a dismissal of a custody proceeding in New York, the foreign court had to exercise jurisdiction in substantial conformity with the UCCJEA]).

"If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this article, the court of this state shall stay its proceeding and communicate with the court of the other state [and] a record must be made of the communication between the two courts and the parties must be informed promptly of the communication and granted access to the record" (Matter of Vashon H. v Bret I., 191 AD3d 1120, 1121 [3d Dept 2021] [citations and internal quotation marks omitted]).

Communication between the courts is statutorily defined by Domestic Relations Law § 75-i, which reads as follows:

"1. A court of this state may communicate and, pursuant to subdivision four of section seventy-six-c, subdivision two of section seventy-six-e [§ 76-e (2)] and section seventy-seven-f of this article, must communicate, with a court in another state concerning a proceeding arising under this article.

"2. The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.

"3. Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties. A record need not be made of the [*13]communication.

"4. Except as otherwise provided in subdivision three of this section, a record must be made of a communication under this section. The parties must be informed promptly of the communication and granted access to the record.

"5. For the purposes of this section, 'record' means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form."^FN41 (Emphasis added.)

Therefore, communication with the other court must: (1) allow the parties the opportunity to participate in the communication, or allow the opportunity to present facts and legal arguments to the courts prior to determination if the parties are not allowed to participate in the communication; and (2) a record must be made of such communication, being defined as a "tangible medium" "stored in an electronic or other medium and is retrievable," of which the parties must be promptly informed of and granted access to said record. A failure of the courts to communicate in this way, and to allow the parties to participate in said communication, prior to making such a determination is a reversable error (Matter of Andrews v Catanzano, 44 AD3d 1109 [3d Dept 2007]; Matter of Frankel v Frankel, 127 AD3d 1186 [2d Dept 2015]; Matter of Touchet v Horstman, 207 AD3d 639 [2d Dept 2022]). Notably, the court seeking to stay its proceeding and communicate "has discretion in determining whether to allow the parties to participate in the intra-court communication, but is required by statute to grant the parties access to the record of that communication and give them 'the opportunity to present facts and legal arguments before a decision on jurisdiction is made.' " (Matter of Vashon H. v Bret I., 191 AD3d 1120, 1121 [3d Dept 2021].)

The Appellate Division, Second Department has only removed the burden of the communication requirement in simultaneous proceedings, Domestic Relations Law § 75-e and § 75-i, in situations where communication between the courts is deemed "not feasible" (Matter of Hollander v Weissberg, 147 AD3d 831, 833 [2d Dept 2017] [where the Appellate Division, Second Department found the Israel Family Court's laws and procedures prevented said communication with the New York court]).

Assuming a New York State court determines that a prior custody proceeding has been commenced in another court in substantial conformity with the UCCJEA, and communication between the courts was properly conducted, if the foreign court "does not determine that New York is the more appropriate forum," the New York court shall "dismiss the [custody] proceeding" (Matter of Hiles v Hiles, 165 AD3d 1394, 1395-1396 [3d Dept 2018] [citations omitted]).

The court where the first of two simultaneous child custody proceedings was filed has the authority to determine whether or not the second would be a more appropriate or convenient forum (Matter of Hiles v Hiles, 165 AD3d 1394 [3d Dept 2018], citing Domestic Relations Law § 76-e [1]-[2]). However, the assumption of jurisdiction by a foreign state does not automatically preclude jurisdiction to a New York court if the foreign jurisdiction's actions regarding the custody determination was not in substantial conformity with the directives of New York's codification of the UCCJEA (Matter of Uhl v Uhl, 244 AD2d 935 [4th Dept 1997]).

The only true exception to an automatic application of the simultaneous proceedings provision outlined within Domestic Relations Law § 76-e is where the state in question possesses absolutely no colorable claim to jurisdiction (Kilcullen v Bubanj, 116 AD2d 470 [1st Dept 1986] [where the [*14]Court concluded that the New York courts should exercise jurisdiction, although a proceeding was pending in Pennsylvania. Neither the plaintiff parent nor the child, who resided with the plaintiff, had ever stepped foot in Pennsylvania; New York was the home state, and there existed no significant connection with Pennsylvania]).

In the case at bar, this court has determined hereinabove that the instant action was commenced prior to the Maryland Custody Action. Pursuant to the UCCJEA, Maryland Circuit Court was required to communicate as outlined hereinabove with this court in accordance with its codified version of the UCCJEA, to determine jurisdiction over custody in this matter. It appears that a formal communication as outlined within the UCCJEA, including the obligation in allowing the opportunity of the parties to present facts and legal arguments to both courts, did not take place prior to the Maryland Circuit Court's decision of April 4, 2025,^FN42 regarding jurisdiction to hear the custody dispute between the parties. Moreover, it does not appear that any action was taken to determine what, if any, effect that decision would have on the pending matter before this court in direct opposition to the intentions and purpose of the UCCJEA (Matter of Montanez v Tompkinson, 167 AD3d 616, 618 [2d Dept 2018] ["designed (in part) to eliminate any jurisdictional competition between courts (in matters of child custody) and strengthen jurisdictional certainty in child custody proceedings"]).

Notwithstanding this court's determination that this action was first in time, in the interest of justice, in promoting uniformity and satisfying the legislative purpose of the UCCJEA, this court determines that a formal communication between this court and the Circuit Court for Howard County, Maryland, is necessary in order to determine: (1) if Maryland has jurisdiction over custody in this matter "in substantial conformity" with Domestic Relations Law § 76;^FN43 (2) which forum is more appropriate; and thereafter (3) to make a determination regarding this court's jurisdiction on a custody determination herein.

In order to comply with the directives of the UCCJEA this court will stay the proceedings herein, and will contact the Circuit Court for Howard County, Maryland to schedule a formal communication among the courts on this issue. As is the discretion of this court, the parties will not be permitted to be a part of said communication, but will have the opportunity following the receipt of the record from said communication to submit papers to the court for consideration in the jurisdictional determination at issue, which may require further oral argument and/or a hearing to resolve.

B. Other Relief

To the extent relief is not granted or otherwise addressed herein, it is hereby denied.

Accordingly, it is hereby ordered that motion sequence No. 2 is granted in part, in that the proceedings herein are stayed in their entirety pursuant to this order; and it is further ordered that this court will contact the Circuit Court for Howard County, Maryland and advise the parties thereafter of a date in which the courts will communicate on this matter, whereafter a record will be made of such communication and provided to the parties for review; and it is further ordered that within 10 days of the court providing to the parties the record of the communication, written submissions of fact and law may be submitted for consideration with respect to the court's determination on the above-outlined issues; and it is further ordered that the parties will be advised by the court if oral argument and/or a hearing will be scheduled in conjunction with the court's determination; and it is further ordered that plaintiff and plaintiff's counsel shall appear for a status conference in this matter on July 30, 2025 at 12:30 p.m. to engage address the issue of venue; and it is further ordered that the plaintiff's counsel shall serve this decision and order with notice of entry on defendant's counsel via NYSCEF filing by July 16, 2025, and shall file an affidavit of service by July 16, 2025; and it is further ordered that to the extent any relief requested has not been granted or otherwise addressed herein, it is hereby denied.