Justice Jeffrey D. Lebowitz

QUEENS COUNTY
Supreme Court

It is ordered that the motion is determined as set forth herein:

Petitioners, the maternal grandparents of the triplets born October 15, 2003, commenced this proceeding pursuant to Domestic Relations Law §72 for grandparent visitation. DRL §72(1) provides that "[w]here either or both of the parents of a minor child, residing within this state, is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent or the grandparents of such child may apply to [supreme or family court] and . . . the court, by order, after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child". (See E.S. v. P.D., 8 NY3d 150 [2007]).

Petitioners' daughter, who was terminally ill when the instant proceeding was commenced on February 16, 2007, passed away on May 21, 2007. Immediately thereafter, respondent father relocated to New Jersey with the triplets allegedly to be closer to the paternal grandparents who reside there.

It is well settled that jurisdiction to entertain a visitation proceeding cannot be based solely on the presence of the petitioner within New York (see Becker v. Toshiko Watanabe, 109 AD2d 861 [1985]). There must be a close connection between the child and the state. Herein, the respondent father and the triplets reside in New Jersey, the triplets attend school in New Jersey, and witnesses who would be called upon by the court concerning evidence with respect to the children's present or future care, protection, training and personal relationships are more readily available in New Jersey. Thus, New Jersey is the more convenient and appropriate forum for this matter (see CPLR 327[a]). On the other hand, the petitioner grandparents did not identify any witnesses, other than themselves, who may be inconvenienced by traveling to New Jersey for the purposes of litigating this matter. The grandparents are not left without a remedy, as New Jersey has a relevant grandparent visitation statute which may arguably be more liberal than its New York counterpart (see New Jersey Grandparents Visitation Statute, N.J. Stat. Ann. §9.2-7.1; Giovinazzo v. Giovinazzo, 13 AD3d 625 [2004]).

While the Court believes that the Watanabe case is somewhat different in that the connections between California and New York were less significant than they are in the present case, it finds the Giovinazzo case to be particularly instructive and stunningly similar to the facts in the instant matter.¹ In Giovinazzo, the Court again reiterated that there must be a close connection between the child and the state. In that case, the mother and child were conceded to have a close connection with New York, but nonetheless, the sister state of Pennsylvania, which like New Jersey, is in close proximity to this jurisdiction, was deemed the proper forum.

Similar to this case, the child in Giovinazzo attended school in Pennsylvania and was involved in numerous extra circular activities, all which took place in Pennsylvania. The child's physician and psychological counselor resided in Pennsylvania, that the grandparents resided in New York, in and of itself, did not give rise to a sufficient connection to justify jurisdiction being founded in this State. Lastly, as noted, Pennsylvania (like New Jersey) has a comparative grandparent visitation statute to the one found in New York.

The Court, therefore, finds that the similarity in factual predicates of both this matter and Giovinazzo lend significant support to the belief that New Jersey, at present, is the appropriate jurisdictional forum to resolve the grandparent visitation matter.

When the divorce action began, jurisdiction in this matter was well established. As a result, substantial litigation has taken place in this matter. However, with the death of Mrs. Krauss, which rendered the matrimonial action moot, all of the children's significant daily activities began to take place within the State of New Jersey.

In this regard, the Court is well aware that during the conduct of both the matrimonial and grandparent action, substantial forensic evaluation was completed, both by order of the Court, as well as independently by the parties. However, some of these forensic evaluations were conducted in New Jersey, where, it is the Court's understanding, that the children have been receiving counseling. While it is not for this Court to determine whether or not any and all of those reports shall be admitted by a court of another jurisdiction, at first blush there seems to be no reason while the conduct of this trial in another jurisdiction should place any greater burden on the rules of admissibility when it comes to these forensic evaluations or psychological testing reports being introduced into evidence. Moreover, forensics alone do not create jurisdiction where none exists.

Finally, reliance on the "home state analysis" is misplaced.

Pursuant to DRL §76-a(1)(b), exclusive, continuing jurisdiction continues until "a court of this state or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state."

Contrary to petitioners' arguments, the home state analysis contained in the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is inapplicable herein where neither the child, nor the child's parents, nor any person acting as a parent, presently reside in New York. As a result. New York loses continuing jurisdiction, (see DRL §76-a[1][b]). Accordingly, as in Giovinazzo, the home state analysis found in UCCJEA is inapplicable to the facts of this case.

Accordingly, respondent's motion to dismiss is granted and the proceeding is hereby dismissed; those branches which request attorneys' fees, other expenses and reimbursements are denied as academic.

SupremeCourtJusticeLebowitz

1. While Giovinazzo (supra) is particularly instructive and directly on point, neither counsel cites it in their respective papers.