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Child Custody and Home State Jurisdiction

The UCCJEA governs State courts’ jurisdiction to make and modify “child-custody determinations," a term that expressly includes custody and visitation orders. The Act requires State courts to enforce valid child-custody and visitation determinations made by sister State courts. New YorkState'sUCCJEAis codified in Domestic Relations Law (“DRL").Article 5-A. DRL § 76(1) provides the exclusive jurisdictional basis for aNew Yorkcourt to make a child custody determination. ANew Yorkcourt has jurisdiction to make an initial child custody determination only if:

a) New York is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state,

b) a court of another state does not have jurisdiction under DRL 76(1)(a), or a court of the home state of the child has declined to exercise jurisdiction on the ground that New York is the more appropriate forum under DRL 76-f or 76-g, and: (i) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and (ii) substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;

c) all courts having jurisdiction under DRL 76 (1)(a) or (b) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under DRL 76-f or 76-g; or

d) no court of any other state would have jurisdiction under the criteria specified above.

A primary goal of the UCCJEA is to avoid simultaneous proceedings in different states or the wrongful modification of a court order of a previous state by a court of a new

state. One of the key mechanisms that the UCCJEA has implemented to prevent this from occurring is mandating that the courts involved communicate with each other. The UCCJEA also provides for continuing exclusive jurisdiction. If a state once takes jurisdiction over a child custody dispute, it retains jurisdiction so long as that state, by its own determination, maintains a significant connection with the disputants or until all disputants have moved away from that state.

DRL § 75 defines the "home state" as the state in which a child lived with a parent, or a person acting as a parent, for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, "home state" means the state in which the child lived from birth with a parent, or a person acting as a parent. A period of temporary absence of a parent, or a person acting as a parent is part of the six-month period.

Consequently, if a child involved in a custody dispute has a home state, only that state may make the initial custody determination, unless the home state declines jurisdiction. A child does not necessarily have a “home state" until he or she has lived in one state for the requisite six months (aside from temporary absences).

Presence of the child, in and of itself, is no basis to assume jurisdiction.

If New York is not the “home state" of the child on the date of the commencement of a proceeding, New York may still exercise jurisdiction if either a court of another state does not have jurisdiction or a court of another state has declined to exercise jurisdiction on the ground that New York is a more appropriate forum and(i) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and (ii) substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships. However, each prong of the test must be satisfied.

The second basis for jurisdiction may ostensibly be invoked where “(b) it is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is within the jurisdiction of the court substantial evidence concerning the child's present or future care, protection, training, and personal relationships". However, notwithstanding the language of this subdivision, this section may not be utilized as a substitute for home-state jurisdiction.

Assuming that no state is presently the home state and none has been for the six months immediately preceding initiation of the proceeding, the plaintiff still has to surmount the dual tests of “significant contacts with the state" and the presence within the

jurisdiction of “substantial evidence".For example, a significant connection was not established by a wife or her three children where the wife and children resided with the wife’s sister and mother inNew Yorkfor only one month prior to the commencement of a proceeding on her petition against the husband, a resident ofNorway, for custody of the children.

If all other states have declined jurisdiction, pursuant to D.R.L. § 76(1)(c), New York may assume jurisdiction when every other potential forum has declined and named New York as the more appropriate forum, even in the absence of a significant connection.

In addition, as set forth by Prof. Merril Sobie:

The final available jurisdictional alternative (Section 76(1)(d)) covers situations where it appears that no other state would have jurisdiction under any of the three options.McKinney’s D.R.L. § 76 Practice Commentaries. In the absence of a “home state" and the further absence of substantial contacts (the child had never lived inNew York), the Family Courtaccepted jurisdiction, applying a “best interests" standard.

Finally, even in the absence of home-state jurisdiction, the UCCJEA provides a basis for temporary emergency jurisdiction. D.R.L. § 76-c reads:

  1. A court, of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child, a sibling or parent of the child.

  2. If there is no previous child custody determination that is entitled to be enforced under this article and a child custody proceeding has not been commenced in a court of a state having jurisdiction under sections seventy-six through seventy-six-b of this title, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under sections seventy-six through seventy-six-b of this title. Where the child who is the subject of a child custody determination under this section is in imminent risk of harm, any order issued under this section shall remain in effect until a court of a state having jurisdiction under sections seventy-six through seventy-six-b of this title has taken steps to assure the protection of this child.

While generally, the mistreatment or abuse of a child is the trigger for temporary emergency jurisdiction, a threat to a sibling or a parent can also invoke the statute.

Even if another state has exercised jurisdiction, a New York court may modify custody arrangements on the basis of the temporary emergency jurisdiction provision as long as the New York court first communicates with the Court of the other state where jurisdiction has been exercised to resolve the emergency, protect the safety of the parties and the child, and determine how long a temporary order should remain in effect. Notice and opportunity to be heard must be given for a temporary emergency order to be enforceable in other states pursuant to the UCCJEA. The duration of a temporary emergency custody order depends on whether custody has been or is being litigated elsewhere. If there is no prior custody order that is enforceable under the UCCJEA and no proceeding has been commenced in a court with jurisdiction, the temporary emergency order becomes a final determination (if it so provides) when the issuing State becomes the child’s home state.

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