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What is the procedure for getting back physical custody of children, getting child custody order overturned

In 2001 I left my husband and got joint custody physical placement with me and that the children remain within the county that issued the order.
Husband and I got back together and moved to a different state(PA). In 2004 I left him again and had physical custody. He moved back to NY. He had visitation, during visitation he kept the kids(NY), would not allow me to bring them home. He coerced me into signing physical custody to him. this was 3 years ago. I am now back in NY. but my ? is this: Did NYS have juristiction to place an order regarding there custody in 2005 while the kids & I lived in Pa.? And, could I get that 2005 order dismissed or overturned, thus returning the children to me?

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Attorney answers (1)

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I am admitted in New York but I cannot represent you over a blog and offer legal advice over the internet.

Yours is the type of fact pattern the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) was intended to address, but stipulations may trump this federal statute.

The "home state" loses its status six months after a child no longer resides in that states. So, if the child left Pennsylvania and stayed in New York six months or more, then New York had jurisdiction to enter a custodial order. However, your fact pattern has a twist. You allege he coerced you into stipulating both physical custody along with jurisdiction to New York. This means you may have waived the "home state" rule and went on to get an order from New York. You may have not raised an objection that there was an order in Pennsylvania and that cemented the court's finding that a New York order was appropriate.

The section in the civil rules that governs erroneous orders is CPLR ยง5015. It provides several situations where an erroneous order can be vacated or amended to reflect reality. My experience has been that family type courts do not understand its provisions and do not want to adhere to it because family based orders are modifiable throughout their life. No family order is res judicata because the family situation can always give rise to changed circumstances. So, file anew and allege changed circumstances to avoid problems with the rules regarding defective old orders.

Never go into a modern courtroom without competent legal representation. Pennies saved today will mean huge numbers of dollars lost tomorrow.
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