CHILD CUSTODY AND HOME STATE JURISDICTION

An article by Thomas Weiss*
Published in the Nassau Lawyer, September 2006, Vol. 56, No. 1.

The Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA)[1] is a uniform State law that was approved in 1997 by the National Conference of Commissioners on Uniform State Laws (NCCUSL) to replace its 1968 Uniform Child Custody Jurisdiction Act (the UCCJA)[2] and to reconcile it with the Parental Kidnapping Prevention Act (PKPA)[3] enacted in 1981 by the Federal government. 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.[4] 

On April 28, 2002, New York State had adopted the UCCJEA, which is codified in Domestic Relations Law (“DRL”) Article 5-A.  DRL § 76(1) of the UCCJEA provides the exclusive jurisdictional basis for a New York court to make a child custody determination.  Under DRL § 76(1), a New York court has jurisdiction to make an initial child custody determination only if:

1. 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,
2. 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;
3. 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
4. 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.[5]  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.[6]  In addition, the UCCJEA 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.  In Bjornson v. Bjornson, 20 A.D.3d 497, 799 N.Y.S.2d 250 (2nd Dept. 2005), the Appellate Division held that after awarding joint custody in divorce action, the Supreme Court had jurisdiction over father's application to modify custody under the UCCJEA (UCCJEA), although mother had moved with child to Norway.  

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.   It is important to note that under the UCCJEA, 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).[7] 

In Conford v. Conford, 271 A.D.2d 106, 711 N.Y.S.2d 199 (3rd Dept. 2000), the Appellate Division held that a Texas Court lacked subject matter jurisdiction over custody issues after a former wife commenced a custody proceeding in Family Court in New York State which was incident to a Texas divorce and the former husband petitioned for enforcement of a Texas custody order or, alternatively, to dismiss the former wife’s action in New York on grounds of lack of subject matter jurisdiction and forum non conveniens.  The Court held that the six-and-one-half-month-old child who had lived in Texas for only eight weeks, five months prior to her father’s commencement of divorce proceedings, had lived in Arizona for five months and had been in Florida for a matter of days had no “home state” for purposes of the UCCJEA.

Presence of the child, in and of itself, is no basis to assume jurisdiction.[8] 

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.

It is important to note that in order for a New York Court to exercise jurisdiction based on this subsection, each prong of the test must be satisfied.  In Clark v. Clark, 21 A.D.3d 1326, 801 N.Y.S.2d 863 (4th Dept. 2005) the Appellate Division held that a New York court lacked jurisdiction to modify custody provisions of judgment of divorce entered several years earlier even if children had significant connection to New York when substantial evidence was no longer available in-state concerning children's care, protection, training, and personal relationships, given that children had resided out-of-state for past six years and events that formed the basis of alleged change of circumstances all occurred out-of-state.   Similarly, in King v. King, 15 A.D.3d 999, 790 N.Y.S.2d 339 (4th Dept. 2005), it was held that pursuant to the UCCJEA, New York, which issued initial custody determination, granting sole custody to mother, and which was father's state of residence, lacked jurisdiction over father's petition seeking visitation with and custody of children because relationship between father and children had become so attenuated that the court could no longer find significant connections and substantial evidence was no longer available in New York concerning children's care, protection, training, and personal relationships as the children had resided in California for approximately nine years and no visitation had occurred for approximately eight years.

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”.[9] As interpreted by the Court of Appeals, “substantial evidence” is synonymous with “optimum access to relevant evidence”.   Vanneck v. Vanneck, 49 N.Y.2d 602, 610, 427 N.Y.S.2d 735 (1980).  To this end, the Court of Appeals has noted that to establish a significant connection “maximum rather than minimum contacts with the state are required.”  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 in New York for only one month prior to the commencement of a proceeding on her petition against the husband, a resident of Norway, for custody of the children.[10]

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 Rivera v. Santiago, 174 Misc.2d 255, 663 N.Y.S.2d 801 (Fam.Ct. Orange Co. 1997) the petitioner father resided in New York; the respondent mother and child resided temporarily in Panama, remaining under the jurisdiction of American law.  In the absence of a “home state” and the further absence of substantial contacts (the child had never lived in New York), the Family Court accepted 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.  In Callahan v. Smith, 23 A.D.2d 957, 805 N.Y.S.2d 157 (3rd Dept. 2005), the Appellate Division held that a father's alleged threat to kill the mother was a sufficient emergency to support the Family Court's assumption of temporary emergency jurisdiction over a custody matter, despite the lack of an emergency affecting the parties' child.

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.[11]  Notice and opportunity to be heard must be given for a temporary emergency order to be enforceable in other states pursuant to the UCCJEA.[12] 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.[13]

* Thomas Weiss is the principal member and founding partner of the Law Offices of Thomas Weiss, P.C. in Mineola, New York and has significant experience in matrimonial and family court matters.

[1] Uniform Child-Custody Jurisdiction and Enforcement Act (1997), 9(1A) U.L.A. 657 (1999)

[2] Uniform Child Custody Jurisdiction Act, 9(1A) U.L.A. 271 (1999).

[3] Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A.

[4] U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention, Juvenile Justice Bulletin, December 2001.

[5] Joan Zorza, The UCCJEA: What is it and How Does it Affect Battered Women in Child-Custody Disputes, 37 Fordham Urban Law Journal 909 (2000) 919.

[6] Id.

[7] See, Consford v. Consford, 271 A.D.2d 106, 711 N.Y.S.2d 199 (3rd Dept. 2000); McDaniel v. McDaniel, 262 A.D.2d 1066, 693 N.Y.S.2d 778 (4th Dept. 1999); Warshawsky v. Warshawsky, supra, Evans v. Evans, 208 A.D.2d 223, 227, 623 N.Y.S.2d 685 (4th Dept. 1995); Mazur v. Mazur, 207 A.D.2d 61, 621 N.Y.S.2d 817 (4th Dept. 1994), lv. den’d 85 N.Y.2d 803, 624 N.Y.S.2d 373 (1995); Matter of Wilber v. Buelow, 136 A.D.2d 786, 787, 523 N.Y.S.2d 249 (3rd Dept. 1988); Matter of Rivera v. Santiago, 174 Misc.2d 255, 257 – 258, 663 N.Y.S.2d 801 (Fam. Ct. Orange Cty. 1997).

[8] Gomez v. Gomez, 86 A.D.2d 594, 446 N.Y.S.2d 127 (2nd Dept. 1982), aff’d 56 N.Y.2d 746, 452 N.Y.S.2d 12 stay den’d 56 N.Y.2d 1028, 453 N.Y.S.2d 684;

[9] Michael P. v. Diana G.,156 A.D.2d 59, 64, 553 N.Y.S.2d 689, 693 (1st Dept. 1990). 

[10] Kratz v. Olsen, 290 A.D.2d 689, 736 N.Y.S.2d 451 (3rd Dept. 2002).

[11] See, Noel D. v. Gladys D., 6 Misc.3d 1017(A), 800 N.Y.S.2d 351 (Table) (N.Y.Fam.Ct. 2005).

[12] UCCJEA § 205(a).

[13] U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention, Juvenile Justice Bulletin, December 2001, page 6.