Richard v. Clarke

Order appealed from, entered September 25, 1969, unanimously reversed, on the law, and the petition dismissed, with $50 costs and disbursements to respondent-appellant. The Special Term was without jurisdiction to direct the nondomiciliary respondent-appellat stepfather to make available for visitation the petitioner father’s child. The child is not within this State. Personal jurisdiction was not obtained over the respondent mother, a foreign domiciliary and the infant’s sole legal custodian. A marital res is not extant in this jurisdiction nor does there exist a New York decree affecting a marital res. Cases such as Matter of Kades ( 23 Misc 2d 222 [McGivern, J.], affd. 10 A D 2d 919 ) and May v. May ( 233 App. Div. 519 , 520) are inapplicable. While in those cases the infant was outside the jurisdiction, there was personal jurisdiction in the proceeding over both parents by virtue of domicile. Concur — Capozzoli, J. P., Tilzer, McGivern, Markewich and Nunez, JJ.