Can the New York courts excercise 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 excercise 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 excercise jurisdiction. Continue reading →