Written by attorney Rebecca Elizabeth Szewczuk

What does the child's "home state" mean?

NY Courts have the power to decide issues of custody, if NY is the child's home state.

Home state is defined 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, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period. See Domestic Relations Law § 75-a.

Therefore, if a parent removes a child from the state of NY, where the child has resided for more than six months, the child's home state will continue to be NY for a period of six months from the date of removal. During that six month period, only NY can assert home state jurisdiction, giving the resident parent an opportunity to commence an action at home, without fear of being preempted (unless the removing parent can assert other grounds for exercise of jurisdiction in the new state, which would ordinarily be difficult to do).

Court strictly interpret the six month residency requirement for home state jurisdiction. See Blackburn v Sontag, 92 AD2d 918 [1983]. The Courts also strictly interpret the provision that home state jurisdiction is lost six months after the removal of the child. In Caronna v Caronna, the Court held that Florida, not NY, was the child's home state, where the Mother waited almost 2 years after the relocation to commence an action. See Caronna v Caronna, 141 Misc2d 834 [1988].

Conversely, Courts have held that the duration of a child's stay within a state is not sufficient to satisfy the home state requirement where there is no real intention to make that state the permanent family residence. See Stanley F v Marlene F, 144 Misc2d 235 [1989]. In addition, under the UCCJEA definition of "home state," the six month period continues to run even if the child is out of the state during a period of "temporary absence." See DRL 75-a(a)(7). In Krymko v Krymko, NY acquired home state jurisdiction, even though, according to the mother, the child resided in NY 18 days short of six months, where the mother wrongfully removed the child to Ontario, Canada, where she remained for some months until the Canadian court ordered her return in NY. See Krymko v Krymko, 32 AD3d 94 [2006].

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