My soon to be ex-husband filed for divorce & custody in NV shortly after residing there for 6 wks. From what I have read, you could only file for custody in NV if the children had been living there for 6 mos. My husband, I & our children have been residents of NY for the past 5 yrs. He recently abandoned us & I was forced to move to NV w/ the kids. My husband moved back in w/ us then after 2 mos, he threatened to file for divorce & locked me out of the house. So I took the kids w/ me to move back to NY but the night before I left for NY, I got served w/ divorce & custody together w/ an injunction w/c stated I couldn't relocate the kids. Came back to NY & filed for custody and got temporary order of protection. Custody got dismissed bec there was a pending case in NV. Who has jurisdiction?Consulted several lawyers and they are telling me different things. Under the UCCJEA, the home state of the child will have jurisdiction right? My petition for custody got dismissed here in NY because the judge said they don't have jurisdiction since I only came back to NY just last month and that there is also a pending custody case in NV. My kids & I only stayed there for 2 mos. I am planning to appeal to that order of dismissal and file a petition for UCCJEA in NY. Could I do that? (I already filed a declaration of UCCJEA in NV when I answered the divorce complaint by my husband.) What will also happen if NV court determines I violated the injunction when I relocated my kids? (had no choice but to go back to NY because I have no friends or relatives in NV and husband locked us out of our house)
This issue revolves around how long it takes for jurisdiction to attach to your children and you in NV. Obviously, their home state is NY, but you may have inadvertently changed it when you moved to NV for 8 weeks. That will likely decide the issue here and in NV.
I would have to research that part of the matter to advise you, ,but it is a specialized issue, so you may want to research that question.
Moreover, since you were served in NV and answered the Complaint, you may have submitted to NV jurisdiction already, which is another issue that must be satisfied. Usually, once you Answer, it automatically conveys jurisdiction upon that state. In NY if you submit an Answer, it confers jurisdiction and then you bear the burden of overcoming that issue, so you would ordinarily submit a Motion to Dismiss before Answering a Complaint.
You need to consult with an experienced attorney who will address those issues.
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You've correctly outlined the issues. I believe NY would be considered the home state under the UCCJEA since, as you've noted, NV should not have it due to a lack of residency. But, since your husband struck first, NV will have to determine the lack of residency and allow jurisdiction in NY. You will have to fight this in both states.
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There can be no one answer to your question and that is why the UCCJEA is junk law.
Although the UCCJEA compels a six month residency period prior to the filing of a proceeding to determine custody/visitation, there are enough exception to swallow up the rule.
For example, in your case, there is an exception that allows a state to determine where were significant contacts with a state such as where one of the parents live or whether domestic violence drove a parent to a new state.
Even though your ex struck first, you can counter strike in the opposing jurisdiction. The rule requires courts to talk to each other and determine which court gets the case. You appear to have a strong argument for keeping the case in New York but if you do not have a lawyer arguing that point in Nevada, you may lose venue to Nevada because you'll fail to release the child from Nevada.
Your situation seems complicated and I highly advise you to speak with an attorney immediately. Time is of the essence due to your issues. Feel free to contact me or another attorney on Avvo.com
If you have any further questions or would like to speak to me about your case, you can reach me at [email protected] or (516)-488-2255. Legal disclaimer: This is not legal advice and is not intended to create an attorney-client relationship. The post is only an opinion. You should speak to an attorney for further information. I try and answer questions in terms that the readers will understand. The poster is licensed only in NY, CT & NJ. If this post is useful to you, please remember to upvote it.
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