Ameneyro v. Hernandez

2024 NY Slip Op 03397

David Ameneyro, respondent, v. Perla Xochitl Hernandez, appellant.

No. 2023-03446, Index No. 550353/21

Supreme Court of New York, Second Department

June 20, 2024

Carol Kahn, New York, NY, for appellant.

Jeffrey C. Bluth, New York, NY, attorney for the child.

FRANCESCA E. CONNOLLY, J.P. LARA J. GENOVESI DEBORAH A DOWLING LOURDES M. VENTURA, JJ.

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals from a resettled order of the Supreme Court, Kings County (Eric I. Prus, J.), dated March 27, 2023. The resettled order, insofar as appealed from, granted that branch of the plaintiff's motion which was to direct the defendant to return the parties' child to New York.

ORDERED that the resettled order is affirmed insofar as appealed from, without costs or disbursements.

The parties are the married parents of one child, born in 2017. In August 2020, the defendant and the child relocated from Brooklyn to Pennsylvania. The plaintiff filed a police report, alleging that the child was abducted by the defendant. The defendant commenced a custody proceeding in Pennsylvania, and the plaintiff commenced this action for a divorce and ancillary relief in New York, seeking, inter alia, custody of the child.

The Court of Common Pleas of Montgomery County, Pennsylvania (hereinafter the Court of Common Pleas), issued an order dated January 26, 2021, awarding the defendant temporary custody of the child (hereinafter the temporary custody order). The temporary custody order provided that each party had the right to file an application to relist the matter for a hearing within 60 days or the temporary custody order would become final. On February 26, 2021, the plaintiff moved to vacate the temporary custody order and to dismiss the custody petition, contesting jurisdiction. Thereafter, prior to May 4, 2022, a conference took place pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law art 5-A; hereinafter UCCJEA) wherein the Court of Common Pleas and the Supreme Court were in agreement that jurisdiction was properly in New York. The Pennsylvania custody proceeding was subsequently closed. In a resettled order dated March 27, 2023, the Supreme Court granted those branches of the plaintiff's motion which were for a declaration that New York is the home state of the child pursuant to UCCJEA and to direct the defendant to return...