Archive for the ‘UCCJEA’ Category

Custody, UCCEJA and Jurisdictional Issues

Sunday, July 26th, 2009

I often deal with situations where either parent  and/or their child relocates to out of state and the other wishes to petition the court for custody of the child, visitation, or modification of existing order or, perhaps, enforcement of a custody order.  While in many cases the noncustodial parent seeks court intervention because the custodial parent relocated without permission, there are situations where the consent was given initially but then intervening events resulted in the need for modification or enforcement of the current custody order.

New York, as well as many other states, has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCEJA”).  UCCEJA aims to discourage interstate child abductions and to prevent “forum shopping” by parents trying to strategically remove the child to a state  to avoid another state’s jurisdiction.  The statute explicitly sets forth the circumstances in which New York courts have jurisdiction, particularly when there is a question which state has the right to exercise jurisdiction because one parent and/or the child no longer resides in New York.  Although it is usually invoked in petitions seeking custody or visitation, or modification and/or enforcement of custody or visitation orders, it also applies to guardianship proceedings, divorce, paternity, child abuse or neglect, termination of parental rights, and domestic violence cases. Since jurisdiction is usually not in issue when the child lives in New York or has moved from the state within six months of filing the petition, the UCCJEA helps to resolve jurisdictional issues in other circumstances where the child has moved to another state or his or her physical presence in the state.  These include cases where the noncustodial parent lives in New York but the child does not; where the child moved from the state more than six months prior to the filing of the petition (but without the noncustodial parent’s consent or to somewhere unknown to that parent);  or where the child is in New York and there are concerns of abuse and/or neglect. These are all scenarios that warrant the application of the UCCJEA.

The UCCJEA sets forth alternative rounds of asserting jurisdiction, which are:  1)  where it is in the best interests of the child based on the “significant connections”  to the state and there is “substantial evidence” within the court’s jurisdiction concerning the child’s current or future care; 2) where there is an emergency situation ; 3) where no other state has jurisdiction or 4) another state has refused jurisdiction.

New York courts’ jurisdiction under the first ground only applies to cases where there is no home state and there has not been a home state for the past six months.  This limitation is imposed by the federal statute, the Parental Kidnapping Prevention Act which trumps the UCCJEA because of the constitutional supremacy clause (Article VI, Clause 2).  This act serves to provide more uniformity amongst states, resolve conflicts between various states that may have an interest and to address the inconsistency caused by the application of the prior act, the Uniform Child Custody Jurisdiction Act (“UCCJA”), which was the basis for states applying their own version resulting in inconsistent orders.  Its objective is to avoid forum shopping, while encouraging the preference for the issuing state to maintain jurisdiction so long as one of the parents or the child remains a resident of the state.  Based on this, as well the two part analysis required to meet the criteria, there are rare cases where this particular section applies.  For example, showing that there are “significant contacts with the state” may be attainable, but proving that there is “substantial evidence” concerning the child’s current or future care is much more challenging.

New York courts’ jurisdiction under the second ground arises typically in child abuse or neglect cases or where the child was abandoned by the parent or legal guardian.  However, although the act serves to limit jurisdiction to situations where some emergency intervention by the courts is required, the statute is strictly construed.  In other words, a mere allegation of abuse and/or neglect is not enough, the courts must be convinced that abuse or neglect actually exist, placing the child’s physical and/or emotional well-being into question.   And even still, the courts may assert only limited or temporary jurisdiction, deferring the case to the home state of the child for further proceedings.  Furthermore, the child must physically be present in the state, and cannot be removed from the state for any reason under this provision.

New York courts will assert jurisdiction under the third ground in the cases where the child has not had a home state anywhere during the previous six months and no significant connections or emergency situation exists.  This is really a safety measure, an effort to avoid the case going unheard by any court.  Cases like this arise when the child moved from New York, then to another state for a short period (less than six months), then back to New York less than six months before the filing of the petition.

New York courts’ jurisdiction under the fourth ground will be asserted in the cases where another state, presumed to have been the child’s home state, has denied jurisdiction based on its own provisions.  Typically states will deny jurisdiction for lack of significant ties, there is a case already pending in another state, there is a more convenient forum or merely for parties’ failure to ascertain legitimate residence, as is the case when parents take the child from another state and hide him or her from the noncustodial parent long enough to establish jurisdiction.

When it comes to modifying a child custody order in New York that was issued by another state, New York will not exercise jurisdiction unless the state that entered it no longer has jurisdiction.  So even if it is the non-custodial parent that remains in the issuing state, while the child and the custodial parent relocated to New York, that state still has jurisdiction unless it declines jurisdiction.  Conversely, New York will enforce a custody order if the child and one parent lives in the state if the order is registered in New York.

The above issues tend to be factually oriented, and family law lawyers will carefully review the parties’ circumstances before and after the move, and any other fact relevant to jurisdictional determinations.

A recent example of application of the above principles, took place in Felty v. Felty, 2009 N.Y. Slip. Op. 05859 (2d Dept. 2009). In Felty, the primary question was whether New York should exercise home-state jurisdiction in a child custody proceeding. The Appellate Division held that the facts supported the mother’s contention that she intended to remain permanently in New York where the children’s six-week visit to Kentucky during the summer of 2007 was a temporary absence, which did not interrupt the six-month pre-petition residency period required by the UCCJEA.

The court found that the father took no affirmative steps prior to the commencement of the New York proceeding to establish permanent residence for the children in Kentucky and the children’s six-week summer visit was merely a temporary stay similar to a summer vacation.
The court stated that even if there was a wrongful removal by the mother, such a removal will not be treated as a temporary absence if there is evidence that the taking or retention of the child was to protect the mother from domestic violence. Here, the mother misled the father about agreeing to reconcile their marriage because he would not permit her to return to New York if she refused to attempt reconciliation. Finally, the court agreed with the lower court’s finding that treating the six-week visit as a temporary absence “permits parties to child custody proceedings to freely vacation and visit family members in other states without fear of losing home-state status.”

As described above, courts will carefully review all of the circumstances related to the parties’ and children’s residences, as well as the reasons for any move. If you are dealing with a situation where a dispute may be litigated in two different states, it would be a good idea to speak with an attorney who has experience dealing with UCCJEA.