Parties in custody or visitation disputes often find themselves in two separate states. In almost all interstate custody cases, the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) will dictate which state has jurisdiction to rule on any custody or visitation issues between the parties.
The UCCJEA is an act that has been adopted by 49 out of the 50 states, including New York, as an attempt to provide consistency between the states and prevent parents from moving to a certain state for a preferential outcome.
The UCCJEA provides when New York will have Jurisdiction for both an (A) initial custody determination and (B) a modification of a prior custody order.
The UCCJEA provides the following order of priority for determining which state has jurisdiction to make an initial custody determination:
What exactly is the “home state” of a child? The UCCJEA defines the term as the state in which the child lived with a parent for at least six consecutive months immediately before the commencement of the custody proceeding. If the child is less than six months old, the home state will be the state in which the child was born and lived from birth. If, at the time the petition was filed, a child has been out of a state for longer than six months, that state will no longer have jurisdiction to determine custody or visitation.
Example. Take the hypothetical family of Alec and Orly Doe, and their one-year-old daughter Nili Doe, who was born and raised in New York. Alec and Orly separate and Alec moves from New York to California with Nili. Alec would not be able to file for custody in California until Nili has resided in California for at least six months. If Orly files for custody in New York before six months have elapsed, California will not be able to hear the matter. In other words, for the first six months after Alec moves with Nili to California, New York will remain Nili’s home state under the UCCJEA.
What about other countries? Can another country be a home “state” for purposes of the UCCJEA? The short answer is yes, it can.
If New York is the Home State under UCCJEA (under (A) or (B) above), New York may decline to exercise its jurisdiction, and transfer it to another state, in these limited circumstances:
In cases where the home state is an “inconvenient forum” and some other state is better equipped to decide custody, the UCCJEA allows that other state to exercise jurisdiction. To determine whether the home state would be an inconvenient forum, the home state court is to analyze specific factors. These factors include location of the evidence and witnesses, any acts of domestic violence, financial situation of the parties, and familiarity of the court with the pending matter. If, after looking at the factors, the home state court determines that another state would be more convenient, then it must decline jurisdiction and allow that other state to take on the case.
In situations where a child (or the child’s sibling or parent) has been abandoned, abused or threatened with harm, a court may exercise temporary emergency jurisdiction even if it is not the child’s home state. However, any order issued by a court exercising jurisdiction under this exception will be temporary in nature as its purpose is to provide immediate protection of the petitioner.
This exception applies to cases where one party has engaged in unjustifiable conduct to improperly obtain home state jurisdiction in a certain state. Two examples of such unjustifiable conduct would be: (a) taking a child from a state without notice to the other parent and (b) withholding information about where the child is. If the home state court finds such unjustifiable conduct to have taken place, the UCCJEA requires that court to decline jurisdiction—and allows the court to also penalize the wrongdoer by ordering them to pay reasonable expenses associated with the action.
In New York, child custody and visitation orders are modifiable where (a) there has been a material change of circumstances and (b) it is in the best interest of the children to modify custody or visitation. However, if the order was entered in another state, the New York court must first determine whether it even has UCCJEA Modification Jurisdiction to entertain a modification request under the UCCJEA.
The UCCJEA provides that once a state with initial jurisdiction has entered a custody order, that state will have exclusive, continuing jurisdiction to modify its order except in certain circumstances. No other state may modify a custody order so long as the state that issued the order has exclusive, continuing jurisdiction. This often becomes an issue when the child moves and establishes a new home state, and the non-custodial parent remains in the state that has exclusive, continuing jurisdiction. In such a scenario, a court in the child’s new home state cannot modify the original custody order unless and until (a) the original state no longer has exclusive, continuing jurisdiction or (b) the original state declines to exercise its jurisdiction on the ground that it is an “inconvenient forum” and the new state is better equipped to decide custody modification issues.
(Note that only the state that has exclusive, continuing jurisdiction can make the determination that it is an “inconvenient forum”).
However, the original court must decline to exercise its exclusive, continuing jurisdiction, and refuse to hear the request for a modification, if the jurisdiction was created or maintained by the “unjustifiable conduct” of the party bringing the modification action. While the UCCJEA does not specifically define “unjustifiable conduct,” examples may include the wrongful removal, detention or concealment of a child, or cases involving domestic violence.
Under the UCCJEA, the state that issued the initial custody order will lose its exclusive, continuing jurisdiction to modify that order only when one of the following occurs: (1) the state loses “significant connection” jurisdiction or (2) the child, the child’s parents, and any person acting as the child’s parent no longer live in the state that issued the order.
Now, only the state that issued the initial custody order may decide that it no longer has “significant connection” jurisdiction. However, any state may determine that the child, the child’s parents, and any person acting as the child’s parent no longer live in the issuing state. While this may seem to be a simple determination, where an individual lives is often the subject of huge debate, especially in cases, for example, involving active-duty service members.
In custody cases where a child has lived in multiple states, under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) the initial custody determination will generally be made in the child’s “home state.” If the child has been absent from their home state, the court will look to see what state the child lived in during the prior six months or during the six months immediately preceding the filing for custody.
But what happens when the child has not lived in the United States in the past six months?
Example: Alec and Orly have an 8-year-old daughter named Nili. Nili was born in Israel, but moved to New York with her parents when he was two years old. After six years in New York, Orly takes Nili and heads back to Israel. Nine months later, Orly files for custody in Israel and Alec files for divorce in New York, also asking for custody. Which court should hear the custody matter regarding Nili, the court in Israel or the New York court?
Under the UCCJEA the home state of a child will generally have jurisdiction to make an initial custody determination, unless one of several limited exceptions applies. These exceptions include: inconvenient forum; emergency jurisdiction; and unjustifiable conduct by one of the parents.
But what about Nili? Can another country be a home “state” for purposes of the UCCJEA? The short answer is yes, it can. Under the UCCJEA, New York courts must treat a foreign country as if it were a state for purposes of determining a child’s home state.
Since Nili has lived outside of New York for more than six months, Nili’s home state would be Israel right?
Under our hypothetical, Nili has lived outside New York for nine months and New York has lost “home state” jurisdiction. If Alec filed three months after Nili and Orly left, New York would still be Nili’s home state; unfortunately he waited nine months before filing. So, looking back six months from the time Alec files for divorce and custody, Nili has been in Israel the entire time. The Virginia court will likely determine Nili “lived in” Israel for the past six months.
But what exactly does “lived in” mean in this context? It might seem straightforward, but may not always be obvious. The court will look at the child’s actual physical presence in a particular state or country for the past six months; however, this does not include a temporary absence from the child’s home state.
For example, if Orly had taken Nili to Israel with her while she was on a temporary work assignment for nine months, New York would have remained Nili’s home state for custody purposes. Her absence from New York and presence in Israel would have been only a temporary situation. The court would likely find that Nili had not been living in Israel. Under this scenario, Alec could still ask the New York courts to make a decision about custody. The same principles apply if Orly had taken Nili to visit her family for the summer in Israel for, let’s say, three months. That period in Israel will not be included in the court’s six months calculation since it was only a temporary absence.
In custody cases where a child has lived in multiple states, under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) the initial custody determination will generally be made in the child’s “home state.” If the child has been absent from their home state, the court will look to see what state the child lived in during the prior six months or during the six months immediately preceding the filing for custody.
But what happens when the child has not lived in the United States in the past six months?
Example: Alec and Orly Doe for example. Alec and Orly have an 8-year-old daughter named Nili. Nili was born in Israel, but moved to New York with her parents when he was two years old. After six years in New York, Orly takes Nili and heads back to Israel. Nine months later, Orly files for custody in Israel and Alec files for divorce in New York, also asking for custody. Which court should hear the custody matter regarding Nili, the court in Israel or the New York court?
Under the UCCJEA the home state of a child will generally have jurisdiction to make an initial custody determination, unless one of several limited exceptions applies. These exceptions include: inconvenient forum; emergency jurisdiction; and unjustifiable conduct by one of the parents. For a full examination of this topic, see The UCCJEA in New York Custody Cases. (POP UP LINK)
But what about Nili? Can another country be a home “state” for purposes of the UCCJEA? The short answer is yes, it can. Under the UCCJEA, New York courts must treat a foreign country as if it were a state for purposes of determining a child’s home state.
Since Nili has lived outside of New York for more than six months, Nili’s home state would be Israel right?
Under our hypothetical, Nili has lived outside New York for nine months and New York has lost “home state” jurisdiction. If Alec filed three months after Nili and Orly left, New York would still be Nili’s home state; unfortunately he waited nine months before filing. So, looking back six months from the time Alec files for divorce and custody, Nili has been in Israel the entire time. The Virginia court will likely determine Nili “lived in” Israel for the past six months.
But what exactly does “lived in” mean in this context? It might seem straightforward, but may not always be obvious. The court will look at the child’s actual physical presence in a particular state or country for the past six months; however, this does not include a temporary absence from the child’s home state.
For example, if Orly had taken Nili to Israel with her while she was on a temporary work assignment for nine months, New York would have remained Nili’s home state for custody purposes. Her absence from New York and presence in Israel would have been only a temporary situation. The court would likely find that Nili had not been living in Israel. Under this scenario, Alec could still ask the New York courts to make a decision about custody. The same principles apply if Orly had taken Nili to visit her family for the summer in Israel for, let’s say, three months. That period in Israel will not be included in the court’s six months calculation since it was only a temporary absence.
Interstate custody jurisdiction is time-sensitive and potentially very complex. If you are involved in a custody case where either parent has moved a child to or from New York, consult with an experienced family law attorney as soon as possible. A good attorney can help you determine which state has jurisdiction, and potentially avoid fighting a custody battle in another state or foreign country.
Whether your UCCJEA case involves an initial Child Custody/Visitations determination or a modification of a prior Child Custody/Visitation order, be sure to speak with an experienced attorney as early in the process as possible.
For an initial UCCJEA Child Custody/Visitation determination, if you know or suspect that the other parent plans to leave the state with your child, it is critical that you speak with an attorney as soon as possible. Due to the strict time constraints under the UCCJEA, failure to act promptly may result in the case being heard in another state. That might require you to incur significant expenses traveling to multiple out-of-state court hearings—not to mention the fact that the other state might have custody laws that are not to your benefit.
For a modification under UCCJEA of a prior Child Custody/Visitation order, it is no less imperative that you consult with an attorney as soon as possible. Failure to address modification jurisdiction under the UCCJEA could result in your case being heard in the wrong state, an invalid custody order being entered, or significant delays in the resolution of your case.
If you are involved in a Multi-Jurisdictional Child Custody Case, where either parent has moved a child to or from New York, consult with Attorney Elena, an experience lawyer in UCCJEA Home state Jurisdiction and UCCJEA New York Modification Jurisdiction as soon as possible. Interstate custody jurisdiction is time-sensitive and potentially very complex. Attorney Elena can help you determine if New York or which state has jurisdiction, and potentially avoid fighting a custody battle in another state or foreign country.
