Boivin v. Gonzalez

Peters, P.J. The father argues that the mother wrongfully removed the child from New York and, therefore, the period of time that she has spent in Puerto Rico since leaving New York should count toward the six-month period required to establish New York as her home state for jurisdictional purposes (see Domestic Relations Law §§ 75-a, 76; Matter of Joy v Kutzuk, 99 AD3d 1049, 1050 [2012]; Matter of Felty v Felty, 66 AD3d 64, 70-71 [2009]; Matter of Krymko v Krymko, 32 AD3d 941, 942 [2006]). The father did not raise the issue of wrongful removal before Family Court and, therefore, it is not preserved for appellate review (see Matter of Harmony S., 22 AD3d 972, 973 [2005]; Matter of Isaiah O. v Andrea P., 287 AD2d 816, 817 [2001]). In any event, the record does not support the contention that the mother’s return to Puerto Rico with the child was wrongful, and it is [1209] clear from the father’s own testimony that the child did not reside in New York for a period of six months at any time prior to the commencement of this proceeding (cf. Matter of Joy v Kutzuk, 99 AD3d at 1050-1051). Therefore, the basic requirements for jurisdiction are not present and the proceeding was properly dismissed. Rose, Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the order is affirmed, without costs.