Whose Case Is It Anyway?
Custody Litigation Across
State Lines

by Clifford J. Petroske, Esq. March 7, 2013
READ MORE ARTICLES
Clifford Petroske, esq. divorce lawyer Long Island

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.

About our firm
Clifford Petroske, esq. divorce lawyer Long Island


​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

CONTACT US TODAY

Modification of a New York Order of Custody:
Once a New York Court issues an Order determining custody, New York is the only place that can modify the order, until:

  1. a court of this state determines that neither the child, the child and a parent, nor the child and a person acting as a 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; or
  2. a court of this state or a court of another state determines that the child or the child’s parents, and any person acting as a parent do not presently reside in this state.  Domestic Relations Law §76-a[1]So, for New York to lose the continuing jurisdiction it needs to modify an order, the party opposing New York’s jurisdiction needs to show that neither the parents nor the child have a significant connection to New York, and that substantial evidence was no longer available in this state concerning the child’s care, protection, training, and personal relationships. Domestic Relations Law §76-a. Otherwise, New York maintains jurisdiction to modify an Order of Custody.

Modification of another states’s Order of Custody:
Even though child custody and visitation orders are always subject to modification, trying to modify another State’s custody order in New York is difficult. Since the UCCJEA is a uniform code that almost all states have enacted, another State will continue to have exclusive, continuing jurisdiction to modify its own custody order until the significant connection/substantial evidence standard is no longer true, or the child (or both parents) no longer reside there. However, New York may intervene if two requirements are met.  First, the party attempting to modify another Court’s Order must establish either of the following:

  1. 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;
  2. 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.

Domestic Relations Law §76-b

Once “prong one” has been satisfied, one of the following must also be established:

  1. The court of the other state determines it no longer has exclusive, continuing jurisdiction or New York determines it would be more a convenient forum for a custody determination.
  2. A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.

Domestic Relations Law §76-b

Therefore, it is possible for New York to modify an order of another state which involves the custody of a child.

The jurisdictional analysis can be complex, and typically requires advice of an experienced Family Law attorney. For example, consider the following hypothetical where both parents (or persons acting as a parent) have relocated and the child has relocated:  Assume the custodial and non-custodial parent were divorced following the issuance of a Florida divorce decree. Assume that the custodial parent relocates to New York and the non-custodial parent relocates to Delaware. Later the non-custodial parent wishes to modify a custody or visitation provision in the divorce decree.

Which state has jurisdiction?

If the child resided in New York for at least six consecutive months immediately before the commencement of a child-custody proceeding, then New York likely has jurisdiction because it is the child’s “home state.”  However, if the child lived in New York and Delaware during the six month period immediately before the commencement of the proceeding, then Delaware or New York may have jurisdiction. The Court will look at which state has a significant connection with the parent and/or child and which state has substantial evidence concerning the child’s care, protection, training, and personal relationships.

If you find yourself in this situation, you should consult with an attorney to determine whether New York has jurisdiction to establish or modify an order of custody.

Request a free consultation

When facing a divorce, child custody, or child support case, you deserve a lawyer who will listen to your concerns and take the time to explain your options, and who has the knowledge and experience to give you the best advice.

Complete the Form or call now for a free consultation (631)337-1977.

  • This field is for validation purposes and should be left unchanged.

Why Choose Petroske Riezenman & Meyers

Knowledge

Matrimonial and family law changes often. We stay informed of upcoming amendments and trends in the law. See our Articles, FAQ’s and Videos Library.

Experience

Our attorneys and support staff have dedicated their careers to excellence and professionalism in the practice of matrimonial and family law. Learn more About Us.

Results

We are proud to be highly recommended by the many satisfied clients we have represented over the years in divorce and Family Court cases. See our Client Reviews.

Petroske Riezenman & Meyers, P.C. staff