Whose Case Is It Anyway? Custody Litigation Across State Lines

By March 7, 2013all

Before the Court can issue a custody determination based upon the child’s best interest, the Court must have the authority to intervene. This legal principle is referred to as jurisdiction. In custody determinations, the Court must possess jurisdiction in order to make a permanent, temporary, initial, or modification order of custody. The jurisdiction requirement changes depending on whether a party seeks to establish an initial custody determination, modify a previous Order of custody of a New York Court, or modify a previous Order of custody of another state.

​Initial Custody Determinations (where no prior Court Order pertaining to custody of the child exists):
New York does not automatically have jurisdiction to make an initial custody determination. In 2002, New York adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA, which has been adopted by every state but Massachusetts, provides four bases upon which a New York court may exercise jurisdiction to make an initial custody determination. At least one basis must apply for a New York court to act. They are as follows:

  • New York is the home state of the child on the date of the commencement of proceedings or was the home state of the child within six months before the commencement of the proceeding and the child is absent from New York but a parent or person acting as a parent continues to live in New York;
  • a court of another state does not have home state jurisdiction or a court which has home state jurisdiction has declined it on the ground that New York is the more appropriate forum and the child and the child’s parents, or the child and at least one parent or person acting as a parent, have a significant connection with this state other than mere physical presence and substantial evidence is available in New York concerning the child’s care, protection, training, and personal relationships;
  • all courts which would have jurisdiction under grounds (1) and (2) have declined to exercise it on the ground that New York is the more appropriate forum; and
  • no court of any other state would have jurisdiction under grounds (1), (2), or (3).   Domestic Relations Law §76(1) 

Importantly, the statute defines “home state” as “the state in which a child lived with a parent or a person acting as a parent at least six consecutive months immediately before the commencement of a child-custody proceeding. In a case of a child less than six months of age, the term means the state in which the child lived from birth with any of the person mentioned.” Domestic Relations Law §75-a(7). Therefore, New York gains jurisdiction only if your child has resided in the state for at least six consecutive months immediately prior to the date you apply for custody. If your child has resided in more than one state during that six month period, the Court may only gain jurisdiction under subdivisions (2) (3) or (4).

There are exceptions to this rule. Notably, New York may gain temporary emergency jurisdiction if the child is present in New York and the child has been abandoned, or if the Court’s intervention is necessary to protect the child, a sibling, or a parent of the child. Domestic Relations Law §76-c

Clifford Petroske

About Clifford Petroske