IN RE: a Custody/Visitation Proceeding under Article 6 of the Family Court Act (2026)

I. Introduction

Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified in New York under article 5-A, Titles I-IV, §§ 75-78-a of the Domestic Relations Law, a court of this state, which has made a child custody determination, has exclusive, continuing jurisdiction over that determination until it is determined, inter alia, that the child, the child's parents, or any person acting as a parent “do not presently reside” in this state (see Domestic Relations Law § 76-a[1][b]; see also UCCJEA § 202[a][2]). This state made the initial child custody determination. The mother and the child do not presently reside in this state, as they have been residing in New Jersey for about two years. At issue is whether the father does “not presently reside” in this state because he is serving an 11-year sentence in a federal prison located in New Jersey. Prior to his imprisonment, he resided in New York. For the reasons set forth herein, this Court determines that, under the totality of circumstances, the father does “not presently reside” in New York within the meaning of the UCCJEA. In reaching this conclusion, this Court finds that there is a distinction between a person's state of “residence” as that term is defined in New York caselaw and the state where a person “presently resides” for purposes of determining what state has jurisdiction to determine a child custody dispute under the UCCJEA.

II. Background

In December 2021, the father K.B. and the mother B.H. entered into a so-ordered stipulation in Kings County Supreme Court (Morgenstern, J.) in New York resolving their dispute regarding custody of the subject child. Under the so-ordered stipulation (hereinafter “the final order”), the mother was awarded sole physical and legal custody with specified parenting time to the father. Additionally, the final order provided, inter alia, that the mother was not permitted to “relocate with [the subject child] beyond a 20-mile radius without the consent of the other party.”

In December 2023, the father filed a modification petition in Kings County Family Court alleging, inter alia, that the mother violated the final order by relocating to Fort Lee, New Jersey without consulting him, and that the mother's move, in effect, interfered with his rights of parental access under the final order. In June 2024, the father amended his petition to assert, inter alia, that the mother's relocation was over the 20-mile radius permitted by the final order, that her move severely impacted his ability to exercise parenting time, and that she was consistently late for exchanges. Thereafter, this Court issued temporary orders modifying the exchange locations and the parental access schedule. Those temporary orders remained in place until December 2025, when the father was sentenced to 11 years in federal prison.

On December 10, 2025, the paternal grandmother filed the subject grandparent visitation petition pursuant to, inter alia, Domestic Relations Law § 72 and Family Court Act § 651. In her petition, the paternal grandmother alleges, inter alia, that prior to the father's incarceration, she enjoyed a “close, meaningful, and consistent relationship” with the subject child, including spending time with her on holidays and birthdays. She alleges that her relationship with the child was facilitated by the father who regularly brought the child to her home. The father “ensured ongoing familial connection between the child and her half-sibling and paternal relatives.” The paternal grandmother asserts that now that the father is incarcerated, she is concerned that the mother will “sever or significantly limit” her relationship with the child. The paternal grandmother seeks an order directing, inter alia, the mother to produce the child for visitation one weekend per month, on specified holiday times, and for telephone or video calls.

On December 10, 2025, the petitioner E.B. on behalf of her child, the paternal sibling K., filed the subject sibling visitation petition pursuant to Domestic Relations Law § 71 and Family Court Act §§ 651, 652. The petition alleges that prior to the father's incarceration, the subject child enjoyed a “close, meaningful, and consistent” relationship with the half-sibling. The petitioner alleges that the siblings share an emotional bond and would benefit from maintaining their connection particularly during a period when their father is no longer available to facilitate the relationship. The petitioner E.B. asserts that she is concerned that the mother intends to “sever or significantly limit” her child's relationship with the subject child. The petition seeks an order directing, inter alia, the mother to produce the subject child for visitation on one weekend per month, on specified holidays, and for telephone or video calls.

On December 11, 2025, the father, who appeared virtually in Kings County Family Court, formally withdrew his modification petition and indicated that he would soon be filing a modification petition seeking monthly in-person prison visits with the subject child, to coincide with visits between the child, the paternal grandmother and the sibling.

On March 2, 2026, the father filed the subject modification petition alleging that his incarceration at the Federal Correctional Institution (FCI) in Fort Dix, New Jersey constitutes a substantial change in circumstances warranting a modification of the parental access schedule. The father expressly seeks “structured in-person visitation at the correctional facility, coordinated where possible with monthly visitation involving the child's paternal grandmother and half-sibling to minimize travel burden and maintain family continuity.” Additionally, the father seeks an order directing, inter alia, the mother to produce the child for regular telephone and video calls and allow him continued access to information regarding the child's education, healthcare, and therapy.

In her motions, the mother seeks dismissal of the grandparent visitation petition, the sibling visitation petition and the father's modification petition on several grounds, including that this Court lacks subject matter jurisdiction under the UCCJEA. The mother contends, inter alia, that New York no longer has exclusive, continuing jurisdiction under Domestic Relations Law § 76-a because neither the child nor the child and one parent have a “significant connection” with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training and personal relationships; and that neither the child nor the parents “presently reside” in this state. The mother contends that, in any event, this Court should decline to exercise jurisdiction because New York is an inconvenient forum and New Jersey is a more appropriate forum (see Domestic Relations Law § 76-f). The mother contends, inter alia, that the grandparent and sibling visitation petitions should be dismissed for lack of standing, and that the father's petition should be dismissed as facially insufficient.

In opposition to the mother's motions, the petitioners and the Attorney for the Child (AFC) contend, inter alia, that New York maintains exclusive, continuing jurisdiction under Domestic Relations Law § 76-a. They contend that even though the father is incarcerated in New Jersey, his residence remains in New York (see Matter of Laurence C. v. James T.R., 5 Misc. 3d 691, 693-694, 785 N.Y.S.2d 859 [Fam. Ct., Rockland County 2004]), which is where he was living before his incarceration, and where he intends to return upon his release from prison. Moreover, the petitioners contend that the mother's move to New Jersey violated the final order, and, therefore, the mother should not be permitted to contend that no party presently resides in New York. They argue that New York is a more convenient forum than New Jersey given the litigation history in New York. Additionally, they assert that the paternal grandmother and the parent of the paternal sibling have standing based upon the need to preserve the established grandparent and sibling relationships with the child. They argue that given that the father can no longer facilitate those relationships, the court must intervene to compel the mother to facilitate those relationships. The father contends that his modification petition is facially sufficient as his incarceration represents a substantial change of circumstances warranting modification of the parental access schedule.

III. Analysis

Domestic Relations Law § 76-a provides, in pertinent part, that “a court of this state which has made a child custody determination consistent with [Domestic Relations Law § 76] has exclusive, continuing jurisdiction over the determination until: (a) a court of this state determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection training and personal relationships; or (b) 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.” Here, a New York court rendered the initial child custody determination under Domestic Relations Law § 76. As such, the issue is whether New York has exclusive, continuing jurisdiction under subdivisions (a) or (b) of Domestic Relations Law § 76-a.

Given that it is undisputed that the child and the mother do not presently reside in this state, the threshold issue is whether within the meaning of Domestic Relations Law 76-a(1)(b) the father also does “not presently reside” in New York since he is currently serving an 11-year sentence in a federal prison in New Jersey. If it is determined that the father does “not presently reside” in New York, then New York is divested of exclusive, continuing jurisdiction under Domestic Relations Law § 76-a, and the petitions must be dismissed. On the other hand, if it is determined that the father “presently resides” in New York, then the Court must consider the parties’ remaining contentions. To resolve the issue requires statutory construction of the phrase “do not presently reside” within the meaning of Domestic Relations Law § 76-a.

In general, “the starting point in any case of [statutory] interpretation must always be the language itself, giving effect to the plain meaning thereof” (Majewski v. Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 673 N.Y.S.2d 966, 696 N.E.2d 978 [1998]; see Matter of Estate of Youngjohn v. Berry Plastics Corp., 36 N.Y.3d 595, 146 N.Y.S.3d 231, 169 N.E.3d 589 [2021]). “Effect and meaning must, if possible, be given to the entire statute and every part and word thereof” (McKinney's Cons Laws of NY, Book 1, Statutes § 98[a]; see People v. Galindo, 38 N.Y.3d 199, 205, 171 N.Y.S.3d 865, 191 N.E.3d 1136 [2022]). “Words are not to be rejected as superfluous where it is practicable to give each a distinct and separate meaning” (Rosner v. Metropolitan Property and Liability Ins. Co., 96 N.Y.2d 475, 479, 729 N.Y.S.2d 658, 754 N.E.2d 760 [2001][internal quotation marks and citations omitted]). “In applying and construing [the UCCJEA], consideration must be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it” (Domestic Relations Law § 78).

“The UCCJEA contains no definition of ‘reside’ or ‘residence.’ In the absence of a statutory definition, we construe words of ordinary import with their usual and commonly understood meaning, which in the case of the term ‘reside,’ implies ‘something more than temporary or physical presence with some degree of permanence and an intention to remain” (Matter of Briggs v. Briggs, 171 A.D.3d 741, 743, 97 N.Y.S.3d 721 [2d Dept. 2019] [internal quotation marks, brackets and citations omitted]; Yaniveth R. v. Ltd Realty Corp., 27 N.Y.3d 186, 192-193, 32 N.Y.S.3d 10, 51 N.E.3d 521 [2019]; Dean v. Tower Ins. Co. of N.Y., 19 N.Y.3d 704, 708, 955 N.Y.S.2d 817, 979 N.E.2d 1143 [2012]). The Court of Appeals explains that “ ‘[t]he question of whether a person ‘reside[s]’ in a given location is a fact-driven inquiry that depends on the totality of circumstances” (Yaniveth R. v Ltd. Realty Corp., 27 N.Y.3d at 194, 32 N.Y.S.3d 10, 51 N.E.3d 521).

Domestic Relations Law § 76-a(1)(b) modifies the word “reside” with the adverb “presently,” which means “at the present time” or “now” (Merriam-Webster.com Dictionary, presently [https://www.merriam-webster.com/dictionary/presently]). Thus, given that each word in a statute must be accorded a distinct meaning, the phrase “presently reside” necessarily has a different meaning than “reside.” Otherwise, the adverb “presently” would be superfluous. The use of the word “presently” as it modifies “reside” emphasizes the place where the person is actually living at the time of the inquiry, as opposed to what state the person considers or intends to be his or her legal residence or domicile.

While the definition of the word “reside” usually connotes an “intention to remain,” the phrase “presently reside,” implicitly negates that connotation, as it focuses on the present circumstances rather than an intention about the future (see State of N.M., ex rel. CYFD v Donna J., 2006-NMCA-023, 139 N.M. 131, 135, 129 P.3d 167, 171 [2006] [“The purposes of the UCCJEA do not require domicile or volition, although evidence consistent with intent to reside is relevant to the analysis”]).

In furtherance of the statutory purpose to promote uniformity between the states that have enacted the UCCJEA (Domestic Relations Law § 78), it is useful to refer to the official comments by the National Conference of Commissioners on Uniform State Laws (NCCUSL), which is the organization that drafted the UCCJEA. The NCCUSL explains in their Comment to UCCJEA § 202, which was codified in New York as Domestic Relations Law § 76-a, that the phrase “do not presently reside” means that “the named persons no longer continue to actually live within the State.” Further, the NCCUSL clarifies that the “phrase ‘do not presently reside’ is not used in the sense of a technical domicile. The fact that the original determination State still considers one parent a domiciliary does not prevent it from losing exclusive, continuing jurisdiction after the child, the parents, and all persons acting as parents have moved from the State” (UCCJEA § 202 cmt, 9 ULA 261, 674 [1999]). The UCCJEA phrase “do not presently reside” reflects that for purposes of custody and visitation, the court of a state wherein the parents and children are physically present is best able to expeditiously decide and enforce its orders of custody and visitation.

Applying the foregoing, the father does not presently reside in New York. The father's 11-year prison sentence in New Jersey reflects that the father's physical presence in New Jersey will be of such length that the child will have aged out of family court custody jurisdiction before the expiration of the father's sentence (Family Court Act §§ 119[c]; 651). For all practical purposes, the father's absence from New York is “something more than temporary” (Yaniveth R. v. Ltd Realty Co., 27 N.Y.3d at 192-193, 32 N.Y.S.3d 10, 51 N.E.3d 521; Matter of Briggs v. Briggs, 171 A.D.3d at 743, 97 N.Y.S.3d 721; cf. Felty v. Felty, 66 A.D.3d 64, 72, 882 N.Y.S.2d 504 [2d Dept. 2009]).

Appellate caselaw from other states is consistent with this Court's interpretation of the UCCJEA phrase “do not presently reside” as it applies to individuals serving prison sentences outside of their domicile state. The Court of Appeals of North Carolina held that Virginia no longer had exclusive, continuing jurisdiction over its initial custody determination where the mother and child resided in North Carolina, and the respondent father, who had resided in Virginia, was serving a sentence in a federal prison in Texas (see In re B.L.H., 239 N.C. App. 52, 60, 767 S.E.2d 905, 911 [2015]). Similarly, the Court of Appeals of New Mexico held that a mother no longer “presently resides” in New Mexico given that she was serving a 15-year sentence in a Texas prison (see State of N.M., ex rel. CYFD v. Donna J., 2006-NMCA-023, 139 N.M. 131, 135-136, 129 P.3d 167, 171-172).

The decision in Matter of Laurence C. v. James T.R, 5 Misc. 3d 691, 785 N.Y.S.2d 859 (Fam. Ct., Rockland County 2004), which is relied upon by the AFC and father, is unpersuasive and not controlling. There, the Family Court conflated technical residence or domicile with the state where the parent “presently resides” within the meaning of the UCCJEA (see id., at 693, 785 N.Y.S.2d 859). As set forth above, the phrase “do not presently reside” is not used in the UCCJEA in the strict sense of legal residence or domicile (UCCJEA § 202 cmt, 9 ULA 261, 674 [1999]). Applying Laurence C.. to the facts of this case would put New York jurisprudence out of step with other states who have considered this very question (see In re B.L.H., 239 N.C. App. 52, 60, 767 S.E.2d 905, 911 [2015]; State of N.M., ex rel. CYFD v. Donna J., 2006-NMCA-023, 139 N.M. 131, 135, 129 P.3d 167, 171 [2006]), leading to outcomes which would undermine the central purposes of the UCCJEA to “promote uniformity of the law” and to expeditiously resolve interstate jurisdictional issues (see Domestic Relations Law § 78).

In sum, the child and both parents do not presently reside in New York. As such, New York is divested of exclusive, continuing jurisdiction under Domestic Relations Law 76-a(b). Accordingly, the petitions are dismissed with prejudice for lack of subject matter jurisdiction. In light of the foregoing, this Court need not reach the parties’ remaining contentions.

Robert A. Markoff, J.