Appeal from an order of the Family Court of Cortland County (Campbell, J.), entered May 18, 2016, which dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.
MEMORANDUM AND ORDER
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of a son (born in 2006), born in New York. In 2014, Family Court issued an order, on the parties' consent, granting the father's petition to modify a prior custody and visitation order, and awarded the parties joint custody of the child with placement with the mother effective June 25, 2014. The 2014 order granted the father visitation with the child during summer vacations and school breaks of three consecutive days or more and as the parties mutually agree. The father apparently remained in New York while the mother and child have lived in Illinois and then Wisconsin with various
We reverse. A New York court that has previously made a child custody determination "has exclusive, continuing jurisdiction over the determination until . . . a court of this state determines that 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" (Domestic Relations Law § 76 — a  [a]; see Matter of Wengenroth v McGuire, 127 A.D.3d 1278, 1280 , lv denied 25 N.Y.3d 913 ). In dismissing the petition, Family Court relied upon the fact that the child and the mother had not resided in New York for over two years and that the "events which [the father] asserts in support of his petition occurred in Wisconsin." However, the father, who shares joint custody of the child pursuant to the 2014 order and has apparently lived continuously in New York since before the 2014 custody order was issued, alleges in an affidavit in support of his petition that the child spent the prior summer — from June 22, 2015 to August 22, 2015 — with him in New York pursuant to the 2014 order
Family Court "should have given the parties an opportunity to present evidence as to whether the child[ ] has maintained a significant connection with New York, and whether substantial evidence is available in New York concerning the child['s] `care, protection, training, and personal relationships'" (Pyronneau v Pyronneau, 130 A.D.3d 707, 708 , quoting Domestic Relations Law § 76 — a  [a]). Given due process concerns, sua sponte dismissal of pleadings is to be used sparingly in the absence of extraordinary circumstances (see Wells Fargo Bank, N.A. v Pabon, 138 A.D.3d 1217, 1219 ; Maynard v Maynard, 138 A.D.3d 794, 794 ). Crediting the father's factual allegations at this early juncture,
Peters, P.J., Garry, Rose and Aarons, JJ., concur.
ORDERED that the order is reversed, on the law, without costs, and matter remitted to the Family Court of Cortland County for further proceedings not inconsistent with this Court's decision.