Can the New York courts exercise jurisdiction over a child custody case? In my practice as a New York City area and Long Island Child Custody attorney, this question comes when a child moves into New York from out of state or if a child moves from New York.
The Uniform Child Custody Jurisdiction and Enforcement Act or UCCJEA has been enacted at the time of this blog entry in New York and all but one state in the United States. New York’s version of the Act begins in the Domestic Relations Law Section 75. The Act provides a mechanism to determine which state, when multiple states are involved, has jurisdiction to issue and modify a child custody order. First, a state must meet the definition of home state to be able to make an order. If a child is under six months of age, the state in which the child is born is the home state as long as a parent still resides there. For children over six months of age, the home state is where the child resided for the previous six months. If the child has not lived anywhere for at least six months then a state in which one parent resides and the child has significant connections can assume home state status. If more than one state can make this claim, then the states should communicate to determine which has the most significant connections to assume jurisdiction.
Once a custody order is made, the state in which the order was made remains the home state, generally, as long as the child resides there. If the child moves, but one parent remains in the home state, in general, the state that made an initial child custody order stays the home state until it declines to exercise jurisdiction. The discretion to exercise jurisdiction should only be excercised so long as the child has significant connections with the state and there is substantial evidence for the state to make a custody determination still available in that state. In practicality, what this means is that the longer a child resides outside of a state, the more likely that the original home state should relinquish jurisdiction. There’s no bright line rule on the timing required for a state to decline to exercise jurisdiction.
The act has provisions for emergency jurisdiction if the child is in New York and: the child was abandonded; or the child, the mother, father or sibling need protection. Emergency jurisdiction should only be assumed until the home state of the child is able to make its own rulings on the case. If the child remains in New York long enough to become the home state, and the prior home state has not taken steps to protect the child, then New York may assume the role of home state. The prior emergency order issued by New York can become a final order of custody and parenting time.
New York and the rest of the participating states should give full faith and credit to custody orders made by states that issue an order in substantial conformity with the provisions of the UCCJEA. There are mechanisms spelled out in the law for registering out of state orders in New York for enforcement. Under certain circumstantces, New York can issue a temporary order to enforce a visitation schedule of an out of state order or to enforce the visitation provisions of an out of state order that does not contain a specific visitation schedule.
There are more nuances to this law then discussed in this blog entry which is intended to provide some of the more common aspects of the law. The UCCJEA is tricky and confusing to navigate. It is advisable to consult with an experienced family law attorney about the law. Please click around this blog and our website for more information about matrimonial and family law questions. Feel free to call about your free initial consultation as well. It would be our pleasure to speak with you about it.