Interstate Custody Disputes and Jurisdictional Issues

Periodically I am asked about jurisdictional issues that arise when one parent and/or their child relocates to out of state and the other wishes to petition the court for child custody or visitation, a modification or change in custody or enforcement of a custody order. Although there are cases where the noncustodial parent seeks court intervention because of the fact that the custodial relocated without permission, there are in fact times where consent was given initially but subsequent events may raise a need for a modification or enforcement of the current custody order.

New York has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCEJA”). This statute attempts to discourage interstate child abductions and to prevent “forum shopping” by parents trying to remove the child to a state to avoid another state’s jurisdiction. The statute explicitly sets forth the circumstances in which New York courts have jurisdiction, particularly when one parent and/or the child no longer resides in New York. While UCCEJA issues are most commonly seen in family court petitions seeking custody or visitation, modifications and enforcements of custody or visitation orders, it also applies to guardianship, divorce, paternity, child abuse or neglect, termination of parental rights and domestic violence cases. Since jurisdiction is usually not in issue when the child lives in New York or has moved from the state within six months of filing the petition, the UCCJEA helps to iron out jurisdictional issues in other circumstances where the child’s residence is in question based on a move from the state or his or her physical presence in the state. These include cases where the noncustodial parent lives in New York but the child does not; where the child moved from the state more than six months prior to the filing of the petition (but without the noncustodial parent’s consent or to somewhere unknown to that parent); or where the child is in New York and there are concerns of abuse or neglect. These are all scenarios that require the application of the UCCJEA.



Situation 2: This section applies mainly in child abuse or neglect cases or where the child was abandoned by the parent or legal guardian. However, although the act serves to limit jurisdiction to situations where some immediate attention should be given, the statute is strictly construed. In other words, a mere allegation of abuse or neglect is not enough, the courts must be convinced that abuse or neglect actually exist, placing the child’s physical and/or emotional well-being into question. And even still, the courts may assert only limited or temporary jurisdiction, deferring the case to the home state of the child for further proceedings. Furthermore, the child must physically be present in the state, and cannot be removed from the state for any reason under this provision.

Situation 3: This section typically applies in cases where the child has not had a home state anywhere during the previous six months, (no significant connections or emergency situation exists). This is a safety measure included in the statute to avoid the case going unheard by any court. Cases like this arise when the child moved from New York, then to another state for a short period (less than six months), then back to New York less than six months before the filing of the petition.

Situation 4: This section applies to cases where another state, presumed to have been the child’s home state, has denied jurisdiction based on its own provisions. Typically states will deny jurisdiction for lack of significant ties, there is a case already pending in another state, there is a more convenient forum or merely for parties’ failure to ascertain legitimate residence (as is the case when parents take the child from another state and hide him or her from the noncustodial parent long enough to establish jurisdiction).


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