Matter of Maura B. v Giovanni P.

Matter of Maura B. v Giovanni P. 2013 NY Slip Op 07418 Decided on November 12, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 12, 2013
Tom, J.P., Andrias, Friedman, Freedman, Clark, JJ. 10998-
10999 -4445

[*1]In re Maura B., Petitioner-Appellant,

v

Giovanni P., Respondent-Respondent.




Law Offices of Ilysa M. Magnus, P.C., New York (Ilysa M.
Magnus of counsel), for appellant.
Giovanni P., respondent pro se.
Jo Ann Douglas, New York, attorney for the child.

Order, Family Court, New York County (George L. Jurow, J.H.O.), entered on or about February 8, 2012, which dismissed the petitions to modify custody for lack of jurisdiction, unanimously affirmed, without costs. Order, same court and hearing officer, entered on or about July 19, 2012, which denied petitioner's motion for emergency temporary custody of the child, unanimously affirmed, without costs.

Family Court correctly determined that it lacked subject matter jurisdiction over this custody matter (see Domestic Relations Law §§ 76-b, 76-e; Stocker v Sheehan, 13 AD3d 1 [1st Dept 2004]). The initial custody determination was made by the Court of Florence, Italy, in 2005. Since then, numerous proceedings have been held in Italy, where respondent has resided since 2000. At the time the petition was filed, in 2011, a proceeding was ongoing in Italy, pursuant to which the parties had recently undergone a forensic evaluation, and a decision as to custody was expected imminently. And, in response to Family Court's inquiry, the Appellate Court of Florence advised that Italy would not decline jurisdiction.

The court also properly declined to exercise temporary emergency jurisdiction (see Domestic Relations Law § 76-c). The child was no longer present in this jurisdiction, and petitioner's unsubstantiated allegations were insufficient to establish that it was necessary in an emergency to protect the child. [*2]

We have considered petitioner's remaining contentions and find them unavailing.

M-4445 - Maura B. v Giovanni P. Motion by the attorney for the child to strike petitioner's reply brief is granted to the extent of striking references to matters dehors the record.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 12, 2013

CLERK