IN RE: Kevin M. KOCH (2025)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Orange County (Christine P. Krahulik, J.), dated February 10, 2022.  The order, upon a decision of the same court dated February 10, 2022, made after a hearing, granted the father's petition for sole legal and physical custody of the subject child and awarded the mother parental access with the subject child via Skype “or other agreed-upon digital service” and “further access to the child as the parties may agree.”

ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provisions thereof awarding the mother parental access with the subject child via Skype “or other agreed-upon digital service” and “further access to the child as the parties may agree”;  as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Orange County, for an in camera interview with the subject child and a new determination thereafter of the mother's parental access with the subject child;  and it is further,

ORDERED that pending a new determination of the mother's parental access, the parental access provisions of the order dated February 10, 2022, shall remain in effect.

The parties, who were never married, are the parents of a daughter born in 2015 (hereinafter the subject child).  In May 2018, the father commenced this proceeding pursuant to Family Court Act article 6 for sole legal and physical custody of the subject child.  After a hearing, in an order dated February 10, 2022, the Family Court granted the petition and awarded the mother parental access with the subject child via Skype “or other agreed-upon digital service” and “further access to the child as the parties may agree.”  The mother appeals.

Contrary to the mother's contention, the Family Court had subject matter jurisdiction over this proceeding.  Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law art 5–A;  hereinafter UCCJEA), New York courts have jurisdiction to make an initial custody determination if New York is the child's home state (see Domestic Relations Law § 76[1][a];  Matter of Kevin P. v. Ieisha T., 229 A.D.3d 703, 704, 215 N.Y.S.3d 488).  UCCJEA defines “home state” as “the state in which a child lived with a parent ․ for at least six consecutive months immediately before the commencement of a child custody proceeding” (Domestic Relations Law § 75–a[7]).  Here, the record reflects that the subject child lived with the father in New York for at least six consecutive months immediately before the commencement of this custody proceeding, and therefore, New York was the subject child's home state as of the commencement of this proceeding (see id. §§ 75–a[7];  76[1][a];  Matter of Katz v. Katz, 117 A.D.3d 1054, 1055, 986 N.Y.S.2d 611).  The mother's contention that the court could not exercise jurisdiction over this proceeding due to a custody proceeding pertaining to the subject child in Taiwan is without merit, as the Taiwan custody proceeding was not pending at the time of the commencement of this proceeding in May 2018 (see Domestic Relations Law § 76–e[1];  cf.  Matter of Graham v. Rawley, 148 A.D.3d 1018, 1019, 48 N.Y.S.3d 783).

“A noncustodial parent should have reasonable rights of parental access, and the denial of those rights to a biological parent is a drastic remedy which should only be invoked when there is substantial evidence that parental access would be detrimental to the child” (Matter of Walker v. Sterkowicz–Walker, 203 A.D.3d 1167, 1168, 163 N.Y.S.3d 447;  see Matter of Badal v. Wilkinson, 213 A.D.3d 926, 183 N.Y.S.3d 567).  “The determination of appropriate parental access is entrusted to the sound discretion of the Family Court, and such determination will not be set aside unless it lacks a sound and substantial basis in the record” (Matter of Walker v. Sterkowicz–Walker, 203 A.D.3d at 1168, 163 N.Y.S.3d 447;  see Matter of Orellana v. Orellana, 112 A.D.3d 720, 978 N.Y.S.2d 236).

Here, the Family Court's determination to limit the mother's parental access with the subject child to access via Skype “or other agreed-upon digital service,” absent agreement by the parties to further parental access, lacked a sound and substantial basis in the record, since the hearing evidence did not demonstrate that it would be detrimental to the subject child to have in-person visits with the mother in New York (see Matter of Kim v. Becker, 223 A.D.3d 813, 815, 204 N.Y.S.3d 152).  Under the circumstances of this case, we find that an in camera interview with the subject child is appropriate to ascertain the subject child's views (see Matter of Velez v. Alvarez, 129 A.D.3d 1096, 1097, 12 N.Y.S.3d 267).  Accordingly, we remit the matter to the Family Court, Orange County, for an in camera interview with the subject child and a new determination thereafter of the mother's parental access with the subject child.

The mother's remaining contentions are without merit.

DUFFY, J.P., WOOTEN, LANDICINO and MCCORMACK, JJ., concur.