A recent case I handled in New York Family Court exemplifies the intricate web of issues implicated in custody disputes over children, triggered by lawsuits filed in different states and pending simultaneously.
What happens when a parent removes or detains a child in another state, without the consent of the other parent? Which court will decide custody? Is it the courts of the state from where the child was removed, or is it the courts of the state where the child finds himself at the present time?
The answers to the above questions depend on the factual details of each case and the law known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), adopted by just about every state. The UCCJEA is a Uniform Act proposed by the National Conference of Commissioners on Uniform State Laws in 1997 and adopted by the various States beginning in 2002.
The purpose UCCJEA Law
The UCCJEA’s central objective is to provide uniformity in the application of the law throughout the states, and, by extension, to prevent irreconcilable decisions concerning custody.
In general, disputes over custody of minors are adjudicated in the courts located in the State where the parents and the minors live. Of course, if the parents and the minors are all in the same state, the UCCJEA does not apply at all and that state’s courts would decide all matters relating to custody under local law.
The UCCJEA comes into play only when each of the parents resides in different states, and both are trying to gain custody of the child in the state in which each parent lives.
There are three different tests which determine which State has jurisdiction under the UCCJEA. The “home state” test, the “emergency jurisdiction test” and only where these do not apply, the “significant connection and evidence” test.
“Home State” – The “Six Months” Rule
First, the UCCJEA vests “exclusive [and] continuing jurisdiction” for child custody litigation in the courts of the child’s “home state”. In turn, “home state” is defined as the state where the child has lived with a parent for at least six consecutive months prior to the commencement of the proceeding (or since birth for children younger than six months).
It is important to note that temporary absences from the state of residence do not change the children’s home state. Even an “extended visit” is not enough to change a child’s home state. Thus, in Stanford v. Sylvain, No. M2000-01782-COA-R3-JV, 2007, for example, a Tennessee court of appeals recently explained the standard as follows:
The child was born and legitimated in Georgia. The mother than moved to Texas with the child and enrolled the Georgia legitimation order, which provided for summer visitation with the father. The parties then allowed the child to visit with the father in Tennessee from December 2004 to May 2005. The father did not return the child in May, and he instead filed a petition to modify custody in October 2005. This Court did not have jurisdiction to modify the custody arrangement because the “period of temporary absence” from Texas was not a change of residence so as to give Tennessee home state jurisdiction.
Thus, in Stanford, a stay in another state which extended from December of one year to
May of the next year, was not considered by the Court of Appeals to be sufficient enough
to be a change of residence, but was rather regarded as a “period of temporary absence.”
The New York statute plainly recognizes the very same principle: temporary
absences do not change the children’s home state. In relevant part, DRL § 75-a, plainly provides as follows:
In this article:
“Home state” means 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. …. A period of temporary absence of any of the mentioned persons is part of the period. (Emphasis added).
One of the exceptions to the applicability of the core “six months” is the emergency jurisdiction rule. For example, if the mother and the child live in New York but seek refuge from the father’s violent outburst in the mother’s parents’ New Jersey residence, the New Jersey court may exercise emergency jurisdiction. Even in such exceptional cases in which there is “emergency jurisdiction”, once the danger passes and emergency circumstances cease, jurisdiction will be transferred to the original “home state” of the child.
“The Significant Connection and Evidence Rule”
Third, only in those cases when the child has not lived in any state for at least six consecutive months, then a court in a state that has (1) “significant connections” with the child and at least one parent and (2) “substantial evidence concerning the child’s care, protection, training, and personal relationships” may assume child-custody jurisdiction.
It should be noted that if more than one state has “significant connections” and “substantial evidence”, the courts of those states must communicate and determine which state has the most significant connections to the child.
Exclusive Continuing Jurisdiction
Once a court of law has made a child-custody determination consistent with UCCJEA, that court shall have exclusive, continuing jurisdiction over that determination until either (1) that court determines that neither the child, the child’s parents, nor any person acting as a parent has a significant connection with the State that made the original order and that substantial evidence is no longer available in the State concerning the child’s care, protection, training, and personal relationships, or (2) that court or a court of another State determines that the child, the child’s parents, and any person acting as a parent do not reside in the State that initially made the child custody order.
First to File
Another important principle of the UCCJEA is that no court may enter any order under the UCCJEA so long as it knows of the pendency of a simultaneous proceeding in another state, without first consulting with the other court.
The law is extremely complex in matters of inter-state custody disputes. Choosing the proper jurisdiction in which to pursue the custody action may be critical to the ultimate fate of the case on its merits.
Author: Robert S. Popescu, Esq. – Popescu Law Group
This and all other articles published by the firm do not constitute legal advice upon which the reader should rely. The matters addressed are general and informational only. Legal advice may only be offered to an actual client of the firm, following consultation and analysis of his/her specific circumstances. The laws vary significantly from jurisdiction to jurisdiction and some or all of the concepts addressed above may have no relevance or applicability in your state. A lawyer-client relationship may only be formed by formal consultation and engagement of the firm.