Earlier today a potential client presented me with this fact pattern. The father of her children had left the state years prior and since leaving had spent very limited time with the children. The mother did go to court for child support and was receiving that support but a custody order had never been established. Recently, the father rolled into town and took one of the children to Arizona, where he resides. This was done without the mother’s consent or consultation. He just did it and now the mother wants her child back. I will talk about this in a later column, but the bottom line is that without a custody order neither parent has any more rights to the children then the other one.
These sorts of interstate custody issues have always been prevalent but since COVID-19 pandemic, these issues have become downright common. Fortunately, this is not a new issue and a competent attorney will know what to do.
So what will that attorney do, you ask? Let me explain.
Every state has some form of family court. These courts are called by many names. In New York they are called the Family Court and every county has one. Other states may call these courts different things but they are all devoted to issues of custody and visitation (among other things but we are not talk about those at this time). Each state also has its own laws that govern issues of custody and visitation. Sometimes those laws are similar but sometimes they are wildly different.
So what happens when two states are involved in a custody case involving one child? Before 1997 the answer was confusion. There were situations where two state courts would issue different custody and visitation rulings involving the same child and sometimes neither court would relent.
Now, the Federal Courts have almost always refused to step into issues involving child custody. But that does not stop Congress who in 1997 adopted the Uniform Child Custody Jurisdiction and Enforcement Act, which is a mouthful so we lawyers just call it the UCCJEA. While this is a federal law and those of you who may not be lawyers but understand civics may be asking yourself just how this applies to the states, all of the states were encouraged by the federal government to adopt this law into their own state codes and all of them did.
Here in New York, the UCCJEA is codified under sections 75 and 76 of the Domestic Relations Law.
So how does the UCCJEA resolve these sorts of issues? Through uniform rules that are adopted by every state.
For the purpose of this article, there are really three rules that you need to know.
First, for a state to have jurisdiction over issues of custody for a particular child that child is supposed to either be born in that state or have resided in that state for six months or more. This is pretty self explanatory.
Second, the state that makes an order regarding the custody of a child first has exclusive continuing jurisdiction over the issues of custody for that child for the life of the order, unless it gives up that jurisdiction. So if New York makes an order regarding custody when a child is young, if the parents want to change that order, that have to come back to New York. Sometimes New York will give up jurisdiction if a child has resided in a different state for a prolonged period of tinw, but you have to go to New York and ask New York to give it up. It is not assumed.
Third, in cases where the life of a child is in danger a state may take temporary emergency jurisdiction, by it cannot keep that jurisdiction exclusively and must return that jurisdiction as soon as it is able. This usually comes up when there are issues of domestic violence against a child or a parent.
So what does a good attorney do for the potential client in the first paragraph? They file a petition for custody in New York and they file a motion to return the child back to New York. The child has been going to school in New York. The child’s doctors are in New York. Everything the child knows is in New York so it’s very likely that the New York judge will order the child back to New York. After that, you serve the order upon the father in Arizona who will hopefully return the child. Make no mistake, this is just the beginning. The parents will then engage in litigation regarding custody, but they will do it in New York because New York is the home state.
The thing that the mother did wrong was she never filed for custody when she filed for child support. If she had a custody order in New York, then the father would have been violating that order when he took the child to Arizona, but because she sat on her laurels, she has to deal with this unfortunate situation.
Until next time…