New York Law Journal: Relocation: Home Is Not Necessarily Where the Heart Is

In Custody

Relocation: Home Is Not Necessarily Where the Heart Is
During the COVID-19 pandemic, many parents left New York state with their children and have not returned. While parents relocated with their children, we questioned whether New York courts would maintain jurisdiction to compel a parent to return a child after having resided outside the state for over six months.
By Lisa Zeiderman and Siobhan O’Grady | April 26, 2021 at 11:00 AM

During the COVID-19 pandemic, many parents left New York state with their children and have not returned. While parents relocated with their children, we questioned whether New York courts would maintain jurisdiction to compel a parent to return a child after having resided outside the state for over six months.

The answer requires both an analysis of Domestic Relations Law Article 5-A, known as the Uniform Child Custody and Enforcement Act (UCCJEA), and the facts of the case. Under the UCCJEA, (enacted in every state except Massachusetts), jurisdiction is based upon a child’s “home state,” which is of paramount importance. Domestic Relations Law (DRL) §75-a(7) defines a child’s “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, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.”

Pursuant to DRL §76, titled “Initial child custody jurisdiction,” New York has jurisdiction to make an initial child custody determination only if one of the following provisions (a) through (d) apply: (a) New York is the home state of the child—or—New York was the home state of the child within six months prior to the commencement AND the child is absent but a parent or other person acting as a parent lives in New York; (b) no other state has jurisdiction under subdivision (a)—or—a state that is the home state of the child has declined to exercise jurisdiction on the ground that New York is a more appropriate forum under DRL §76-f or 76-g AND both of the following factors are met: (i) the parties (child plus parent(s)) have a significant connection to New York other than mere physical presence, and (ii) substantial evidence is available in New York concerning the child’s care, protection, training and personal relationships; (c) all states having jurisdiction under (a) or (b) have declined to exercise jurisdiction on the ground that New York is a more appropriate forum under DRL §§76-f or 76-g;—OR—(d) no state would have jurisdiction under (a), (b), or (c).

Other considerations include whether a child was wrongfully removed from the state and prevented from returning during the six-month period preceding the petition. Krymko v. Krymko, 32 A.D.3d 941 (2d Dept. 2006). Was the absence nothing more than a “period of temporary absence”, as contemplated by DRL §75-a(7), and therefore, considered part of the six month period that results in New York being the home state? Padmo v. Kayef, 134 A.D.3d 942, 943 (2d Dept. 2015).

Notwithstanding the UCCJEA, pursuant to DRL §76-f, titled “Inconvenient forum,” New York can decline jurisdiction if New York is an inconvenient forum and another forum is more appropriate. Relevant factors are considered including: (a) domestic violence, mistreatment, or abuse of a child or sibling, and which state could best protect the parties and child, (b) the length of time the child resided outside New York, (c) the distance between New York and the other state, (d) the relative financial circumstances of the parties, (e) any agreement of the parties as to which state should assume jurisdiction, (f) the nature and location of any evidence related to the pending litigation, including the child’s testimony, (g) the ability of the New York court and the other court to determine the issues expeditiously and the procedures necessary to present evidence, and (h) the familiarity of New York court and the other court with the facts and issues.

Further, if a prior custody determination was made in New York, then New York has exclusive continuing jurisdiction under DRL §76-a provided New York had appropriate jurisdiction under DRL §76 (the home state rule) to make the initial custody determination, and at least one parent still resides in New York. If the prior custody determination was made in another state, then New York can exercise jurisdiction under DRL §76-b if New York would have jurisdiction to make an initial custody determination under DRL §76 (the home state rule), and either: (a) the other state determines it no longer has exclusive continuing jurisdiction—or—that New York would be a more convenient forum; or (b) the parents and child no longer reside in the other state.

As in Helmeyer v. Setzer, 173 A.D.3d 740 (2d Dept. 2019), the court will examine the child’s connection based upon factors including: (a) whether any parent or relatives reside in New York, (b) the location of the child’s physicians or other providers, (c) the child’s visits with a parent in New York, and (d) whether substantial evidence is available in New York concerning the child’s present and future welfare. In Helmeyer, the Second Department found New York to be the convenient forum because: (a) the father had promptly commenced proceedings in New York shortly after the mother relocated, and the additional time it took to dispose of those proceedings did not militate in favor of finding that New York was an inconvenient forum, (b) the distance between the New York court and Connecticut was not so significant to present any inconvenience, (c) much of the evidence was located in New York, (d) testimony of the mother could be presented by telephone, audiovisual means, or other electronic means, as expressly provided for in DRL §75-j, (e) the New York court had full and unimpeded access to the records and files from the underlying custody proceeding that resulted in the original custody order, (f) New York had more familiarity with the case than Connecticut and a greater ability to expeditiously resolve it, and (g) the child’s AFC was located in New York and familiar with the proceedings, thus providing continuity of representation. Id. at 744.

Further complexities arise when there is no “home state” under the UCCJEA because the child has moved frequently, and/or is not residing with a “parent” or “person acting as a parent” for six months in any one state. In Defrank v. Wolf, 179 A.D.3d 676 (2d Dept. 2020), while the child had been in New York for more than six months, the child was living with a grandparent under an informal arrangement, without a court order. Therefore, New York was not the child’s “home state” and neither was Pennsylvania as the child had not resided in Pennsylvania for more than six months. Id. at 677-78. Under those circumstances, pursuant to DRL §76(1)(b), the New York court may exercise jurisdiction if: (a) the child and at least one parent have significant connection to New York other than mere physical presence, and (b) substantial evidence is available in New York concerning the child’s care, protection, training, and personal relationships. Id. at 678. In Mark B. v. Tameka D., 183 A.D.3d 1038 (3d Dept. 2020), the Third Department performed the DRL §76(1)(b) analysis (significant connection/substantial evidence), when the child had no “home state” and determined that the New York court had jurisdiction. Id.

Significantly, pursuant to DRL §76-c, in emergency situations, New York courts can exercise temporary emergency jurisdiction provided: (a) the child is present in New York AND (b) the child has been abandoned OR it is necessary in an emergency to protect the child, a sibling or parent of the child. (See DRL §76-c(1)). However, DRL §76-c subdivisions (2), (3) and (4) delineate the expiration periods for such emergency jurisdictional authority and a requirement that the New York court communicate with the other state that would have jurisdiction under DRL §§76, 76-a and 76-b.

In sum, the UCCJEA is not a safeguard to claim jurisdiction in another state. For those parents who believe they have established jurisdiction outside of New York state by overstaying their temporary absence from the state, they best review their position. If the relocation was not on consent of the parent remaining in New York, or worse, in violation of a New York custody order, the court could very well determine that the child’s “temporary absence” was the result of a wrongful removal from the jurisdiction, thus deeming that time and the time in the other state will not counted towards that state becoming the “home state.” Moreover, such a move could ultimately and permanently harm the relocated parent’s chances of obtaining ultimate custody of the child.

Reprinted with permission from the April 26, 2021 edition of the New York Law Journal© 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

Lisa Zeiderman is managing partner at Miller Zeiderman.

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