THE UNIFORM CHILD CUSTODY JURISDICTION & ENFORCEMENT ACT
(UCCJEA): AN OVERVIEW & SPECIFIC APPLICATIONS
Scott Kadien
Irene Pijuan
Danielle Restiano
FALL 2008
Updated Spring 2015 by Anaiss Rijo
Completed to fulfill the requirement of the Attorney for the Child Externship, SUNY Buffalo
Law School, Prof. Susan Vivian Mangold
May be cited with proper attribution to student authors
The Uniform Child Custody Jurisdiction and Enforcement Act: An Overview and Specific
Applications
I.
General History of the UCCJEA
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a uniform
State law that was approved in 1997 by the National Conference of Commissioners on Uniform
State Laws (NCCUSL) to replace its 1968 Uniform Child Custody Jurisdiction Act (the
UCCJA).1 NCCUSL drafts and proposes laws in areas where it believes uniformity is important,
but the laws become effective only upon adoption by State legislatures.2 The UCCJEA was
established in response to the inconsistencies of interpretation by which State courts exercised
jurisdiction in child-custody determinations in accordance to the UCCJA.
Before 1968, State courts throughout the United States could exercise jurisdiction over a
child-custody case based on a child’s presence in the State.3 However, the freedom of interstate
jurisdiction by courts fostered child abduction and forum shopping, because parents with
physical possession of a child could choose the forum that would decide custody.4 Under the
UCCJA of 1968, new requirements were enforced intended to remove parents’ legal incentive to
abduct children in search of a friendly forum that would make an initial custody order or modify
an existing order. The UCCJA based jurisdiction on a child’s close affiliation with a State.
Specifically, it established four jurisdictional grounds:
1. Home State (reserved for the State in which the child has lived for at least 6 months
preceding commencement of the action);
2. Significant connection (exists when a State has substantial evidence about a child as
a result of the child’s significant connections to that State);
1
Uniform Child Custody Jurisdiction Act, 9(1A) U.L.A. 271 (1999).
Patricia M. Hoff, U.S. Department of Justice. Office of Juvenile Justice and Delinquency Prevention. Juvenile
Justice Bulletin: The Uniform Child-Custody Jurisdiction and Enforcement Act, accessible at
https://www.ncjrs.gov/pdffiles1/ojjdp/189181.pdf.
3
Id. at 2.
4
Id.
2
2
3. Emergency (governs situations such as abandonment or abuse that require immediate
protective action); and
4. Vacuum (applies when no other jurisdictional basis exists).5
However, the UCCJA was inconsistent in its interpretations of the four grounds.
Although the UCCJA was a major improvement over pre-1968 law governing
jurisdiction in child-custody cases, and was adopted in all fifty states, some problems remained.
To close existing gaps and bring greater uniformity to interstate child-custody practice, in 1980,
Congress passed the Parental Kidnapping Prevention Act (PKPA) to address the problems that
continued to plague jurisdictional matters in custody disputes.6 However, once its provisions
were put into effect, there were apparent incongruities between the application of the PKPA and
the UCCJA that only led to more confusion and inconsistency in trying to determine jurisdiction
in a custody proceeding.
II.
Inconsistencies in Application of the UCCJA and the PKPA
While four jurisdictional grounds were established in custody disputes under the UCCJA,
the Act gave no priority to any of the four factors. The lack of priority allowed for each parent to
litigate for custody in two different states. Unless one court conceded jurisdiction to the other, it
was possible for two conflicting custody orders to arise, offering no resolution to the issue. The
PKPA, in an attempt to remedy the lack of priority jurisdiction, “showed a strong jurisdictional
preference for the child’s home state in interstate child custody determinations.”7 In addition the
PKPA established “full faith” and “credit” for child custody orders from states that had proper
jurisdiction.8 For example, if the initial child custody determination was not made in the child’s
5
Id. at 2.
Family Law Organization. The Uniform Child-Custody Jurisdiction and Enforcement Act. Accessible at
http://www.familylaw.org/uccja.htm.
7
Id.
8
The Full Faith and Credit Clause—Article IV, Section 1, of the U.S. Constitution—provides that the various states
must recognize legislative acts, public records, and judicial decisions of the other states within the United States.
6
3
home state, the PKPA ordered that the determination was not given “full faith” and “credit,” and
the matter would be re-litigated in the child’s home state. Problems, thus, arose in the application
of these two laws when courts found jurisdiction under the UCCJA and exercised it, even though
the PKPA should have been given precedence because it is a federal statute according to the
Supremacy Clause of the Constitution. As a result, the NCCUSL saw the need to revise existing
law that governed jurisdiction, and address the holes in enforcements of those determinations to
bring the two major conflicting acts, the PKPA and the UCCJA into harmony.
III.
UCCJEA Highlight and Applicability
The drafting of the UCCJEA was meant to clarify the ambiguities in the UCCJA and the
PKPA, so as not to produce conflicting orders in different jurisdictions. The UCCJEA
accomplished two major purposes. First, it revised the law on child custody jurisdiction in light
of federal enactments and almost thirty years of inconsistent case law.9 Article 2 of the UCCJEA
provides clearer standards by which States can exercise original jurisdiction over a child custody
determination. It also, for the first time, enunciated a standard of continuing jurisdiction and
clarifies modification jurisdiction.10 Second, the UCCJEA provides in Article 3 for a remedial
process to enforce interstate child custody and visitation determinations.11 In doing so, it brings a
uniform procedure to the law of interstate enforcement that was producing inconsistent results.
The UCCJEA applies to a variety of proceedings. Specifically, courts in UCCJEA states
must comply with the statute when custody and visitation issues arise in proceedings for divorce,
separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights,
and protection from domestic violence.12 The UCCJEA does not apply to child support
9
Family Law Organization
Id.
11
Id.
12
Juvenile Justice Bulletin at 4.
10
4
proceedings or adoption cases.13 Identifying the specific proceedings to which the UCCJEA is
applicable clarifies when courts must conform to the UCCJEA, which should minimize the
likelihood that more than one State will take jurisdiction over the same matter.
IV.
New York’s Adoption of the UCCJEA
The State of New York enacted the UCCJEA in 2002, repealing and replacing Article 5A of the Domestic Relations Law, which was the codification of the UCCJA. The UCCJEA
addressed concerns New York and many other states faced in trying to apply the UCCJA and the
PKPA consistently. New York’s adoption of the law proved to provide: “clarity to inconsistent
interpretations of the UCCJA and the PKPA,” it “embodied efficient, speedy enforcement
procedures,” and “it is sensitive to protecting victims of domestic violence.”
A. Title I – General Provisions
The UCCJEA is found under the New York Domestic Relations Law Article 5-a.
N.Y. Dom. Rel. Law § 75-a provides definitions that are pertinent to understanding the
legislation. Terms like “home state,” “modification,” “issuing court,” and “issuing state” are
listed here to ensure clarity. International application of the law is dealt with in section 75-d.
Under this provision a foreign country is treated as a state of the United States for application
and conformity of the UCCJEA. Also, § 75-f gives priority on a court calendar to any question of
jurisdiction raised by “a party, child, or law guardian to be handled expeditiously.”14
B. Title II-Jurisdiction
N.Y. Dom. Rel. Law Title II of Article 5-a encompasses the jurisdiction section of the
UCCJEA beginning with § 76. This provision lays out the ground for jurisdiction under the
13
14
Id. at 4.
N.Y. Dom. Rel. Law § 75-a (McKinney 2014).
5
UCCJEA for an initial custody determination. The statute provides four bases to determine initial
jurisdiction:
1. Except as otherwise provided in section seventy-six-c of this title, a court of this state
has jurisdiction to make an initial child custody determination only if: (a) this state is the
home state of the child on the date of the commencement of the proceeding, or was the
home state of the child within six months before the commencement of the proceeding
and the child is absent from this state but a parent or person acting as a parent continues
to live in this state; (b) a court of another state does not have jurisdiction under paragraph
(a) of this subdivision, or a court of the home state of the child has declined to exercise
jurisdiction on the ground that this state is the more appropriate forum under section
seventy-six-f or seventy-six-g of this title, and: (i) the child and the child's parents, or the
child and at least one parent or a person acting as a parent, have a significant connection
with this state other than mere physical presence; and (ii) substantial evidence is available
in this state concerning the child's care, protection, training, and personal relationships;
(c) all courts having jurisdiction under paragraph (a) or (b) of this subdivision have
declined to exercise jurisdiction on the ground that a court of this state is the more
appropriate forum to determine the custody of the child under section seventy-six-f or
seventy-six-g of this title; or (d) no court of any other state would have jurisdiction under
the criteria specified in paragraph (a), (b) or (c) of this subdivision.15
Throughout § 76, the home state of the child is given priority in exercising jurisdiction “requiring
that a non-home state defer to a home state’s right to make an initial custody determination.”16
This rectifies one of the problems encountered under the UCCJA; finally giving priority among
those four grounds for jurisdiction rather than having them compete with the possible outcome of
simultaneous orders from different courts.
Furthermore, exclusive, continuing jurisdiction is determined in § 76-a. Under this
provision, a New York court that has made a custody determination retains exclusive, continuing
jurisdiction until “a court of this state determines the child or the child and one parents no longer
has significant connection with New York and substantial evidence is no longer available here to
make a determination, or “a court determines the child, or child’s parents no longer reside in
15
16
N.Y. Dom. Rel. Law § 76 (McKinney 2014)
Id.
6
New York.”17 Jurisdiction to modify a custody determination made in another state cannot be
exercised by a court in New York unless, that New York court has authority to make an initial
custody determination under § 76 and “the court of the other state determines it no longer has
exclusive, continuing jurisdiction, that a New York court would be a more convenient forum, or
a court in the other state determines the child or parents do not presently reside in that state.” 18
Temporary emergency jurisdiction is also provided for in New York under the UCCJEA.
In § 76-c, a New York court may make a temporary order “if the child is present in this state and
the child has been abandoned, or it is necessary in an emergency to protect the child, a sibling, or
parent of the child.”19 The provision goes on to provide for how long the temporary emergency
order would stay in place depending on whether previous custody orders were issued.
Title II also addresses a court’s authority to decline jurisdiction for inconvenient forum.
Section 76-f(2) explains that before declining jurisdiction for inconvenient forum in New York, a
court must determine if it is appropriate for a court of another state to exercise jurisdiction.20
This section provides a list of criteria (a)-(h) for a court to consider in making this determination.
C. Title III- Enforcement
Under Tile III of New York’s UCCJEA, special provisions are made to enforce custody
determinations both made in the United States and abroad. Section 77-a specifically provides for
the enforcement of an order to return a child made under the Hague Convention on the Civil
Aspects of International Child Abduction.21 Title III goes on to require enforcement, by New
York courts, of child custody orders made in other states “if the latter court exercises jurisdiction
17
N.Y. Dom. Rel. Law § 76-a (McKinney).
N.Y. Dom. Rel. Law § 76 (McKinney).
19
N.Y. Dom. Rel. Law § 76-c (McKinney).
20
N.Y. Dom. Rel. Law § 76-f(2) (McKinney).
21
N.Y. Dom. Rel. Law § 77-a (McKinney).
18
7
in substantial conformity with this article.”22 This provision reinforces the concept of “full faith”
and “credit” given to custody orders made in other states as long as the foreign court has made a
determination in a manner not contrary to the parameters laid out by the UCCJEA.
Sections 77-d and 77-e lay out procedures for registering a foreign custody order in New
York and enforcement of that registered custody order. Section 77-d provides that a person
seeking to register a custody order of another state in New York must send the appropriate New
York court document requesting registration, two copies of the order, and the address of the
person awarded custody.23 The court in turn must give notice to any party who may wish to
contest the registration of the foreign custody order. Once registered, a New York court may
enforce the foreign custody order “with any relief normally available under New York law.”24
The role of law enforcement and prosecutors are also provided for in Title III. Section 77n lays out the appropriate scenarios when a prosecutor may take “lawful action to . . . locate a
child, obtain the return of a child, or enforce a custody determination.”25 In doing so, a
prosecutor may ask for the assistance of law enforcement in specific custody cases.
D. Title IV – Miscellaneous Provisions
There are two provisions under Title IV. Section 78 reinforces the goal of uniformity in
application among the states that have adopted the UCCJEA. Section 78-a provides for an
explanation as to the severability of the provisions of this article. “If any provision under this
article is held invalid, the invalidity does not preclude application of other parts that are valid.”26
22
N.Y. Dom. Rel. Law § 76-c (McKinney).
N.Y. Dom. Rel. Law § 77(d)(e) (McKinney).
24
Id.
25
N.Y. Dom. Rel. Law § 77-n (McKinney).
26
N.Y. Dom. Rel. Law § 78-a (McKinney).
23
8
V.
Modifications Made by New York in Adopting the UCCJEA
In adoption of the UCCJEA, New York made several modifications to the language of
certain provisions that differ from the uniform act. In Title I, along with the short title in Section
75, the New York legislature added a statement of legislative intent to “underscore the
paramount importance of child safety, of protection from family violence and the
implementation of the Lee Ann Cruz Memorial.”27
Modifications in Title II, dealing with jurisdiction, begin with § 76-f, regarding
inconvenient forum. In laying out who has standing to challenge jurisdiction for inconvenient
forum, New York adds that such a challenge can be made by the child or the Law Guardian (now
Attorney for the Child),28 where the original Uniform Act does not specifically give that right.29
New York’s version of the temporary emergency jurisdiction provision differs from section 204
of the Uniform Act as well. In section 76-c(1) of the New York UCCJEA, it calls for temporary
emergency jurisdiction “where it is necessary in an emergency to protect the child, a sibling, or
parent of the child.”30
New York further provides in its temporary emergency jurisdiction provision that a
temporary order issued in New York will remain in effect until a court with proper jurisdiction
takes steps to protect the child where the child is in imminent risk of harm. However, the
Uniform Act does not specifically address imminent risk of harm. One of the largest concerns in
adopting the UCCJEA for the New York legislature was providing protections for victims of
domestic violence. This is certainly reflected in section 76-h(5) which makes special
27
N.Y. Dom. Rel. Law § 75 (McKinney).
Based on the recommendations of the Statewide Law Guardian Advisory Committee, in October 2007 Chief
Judge Judith S. Kaye issued an administrative order setting down the function of the law guardian as the attorney for
the child.
29
N.Y. Dom. Rel. Law § 76-f (McKinney).
30
N.Y. Dom. Rel. Law § 76-c(1) (McKinney).
28
9
accommodations to address confidentiality where a parent is the victim of abuse and may be
living in a shelter for domestic violence victims or where disclosure of the victim’s address
would pose an undue risk of harm.
In its enforcement provisions, § 77-j modifies the standard for application of a warrant to
obtain physical custody of a child to read “if the child is at imminent risk of suffering serious
physical harm” opposed to “if the child is immediately likely to suffer serious physical harm” as
found in the Uniform Act.31 New York goes on further to allow law enforcement to deliver the
child to the petitioner and work with child protective services to protect the child where
necessary.
With these and several other modifications made throughout New York’s adoption of the
UCCJEA, the act serves to give “greater certainty to the adjudication of interstate and
international child custody cases and empower courts in New York State to take swift, decisive
action with respect to enforcement” of child custody orders.
VI.
Modification of custody Decrees in NYS under the UCCJEA
A. Modification of Custody Decrees originating in New York State
S 76-a. Exclusive, continuing jurisdiction.
(1) Except as otherwise provided in section seventy-six-c of this title, a court of this state
which has made a child custody determination consistent with section seventy-six or
seventy-six-b of this title has exclusive, continuing jurisdiction over the determination
until: (a) a court of this state determines that neither the child, the child and one parent,
nor the child and a person acting as a parent have a significant connection with this state
and that substantial evidence is no longer available in this state concerning the child`s
care, protection, training, and personal relationships; or (b) a court of this state or a court
of another state determines that the child, the child`s parents, and any person acting as a
parent do not presently reside in this state. (2) A court of this state which has made a
child custody determination and does not have exclusive, continuing jurisdiction under
this section may modify that determination only if it has jurisdiction to make an initial
determination under section seventy-six of this title.32
31
32
N.Y. Dom. Rel. Law § 77-j (McKinney).
N.Y. Dom. Rel. Law § 76-a (McKinney).
10
When modifying a custody order, the court should specify whether its basis for
proceeding with custody litigation is based on exclusive, continuing jurisdiction, over a prior
New York order, and, if so, whether New York is an inconvenient forum and the court of another
state is more appropriate. A New York court must determine whether it has continuing
jurisdiction over a petition, even though the children live with a parent in another state, and there
is no indication that the other state’s court declined to exercise jurisdiction over the matter. The
court must adduce evidence as to whether the mother and children have significant connections
with New York, and whether the court of another state is the more appropriate forum.
In deciding whether the New York courts would retain and exercise their continuing
exclusive jurisdiction, the familiarity of the Attorney for the Child and the attorneys with the
case, the financial resources of the parties, and the availability of obtaining out-of-state
depositions or testimony by telephone or audio-visually, are factors that may be considered in
retaining jurisdiction. N.Y. Domestic Relations Law § 76-e, prevents the exercise of jurisdiction
where a proceeding is already pending in another state which has custody jurisdiction. Section
76-f permits the court to decline to exercise jurisdictions where the matter could be more
properly determined in another state. Section 76-g, permits the courts to decline to exercise
jurisdiction where the person seeking to invoke its jurisdiction has engaged in unjustifiable
conduct.
1. Examples of cases in which New York Courts exercised continuing
jurisdiction over parents/children in another state
In DeJac v. DeJac, the 4th Department reversed the lower court and concluded that New
York State had continuing, exclusive jurisdiction over the father’s petition to modify the custody
order and gain sole custody.33 The DeJac’s had two children and were divorced in New York and
33
DeJac v. DeJac, 17 A.D.3d 1066,1067 (4th Dep’t 2005).
11
the mother relocated to Georgia. The father petitioned to modify the divorce judgment which
granted the mother sole custody. The mother cross-motioned to dismiss the father’s petition and
enforce the divorce judgment. The Supreme Court recognized that the matter would be handled
more expeditiously in New York, but still determined that other factors outweighed that
consideration.34 The 4th Department concluded that the Supreme Court erred in determining that
New York State was an inconvenient forum because although the children resided in Georgia for
the three and a half years prior to the father’s petition, there were extensive periods of visitation
with their father in New York, often panning several months.35 Therefore, New York courts had
continuing jurisdiction in the custody proceeding.
Similarly, in Bjornson v. Bjornson, the 2nd Department also ruled that New York State
had continuing and exclusive jurisdiction on similar grounds to DeJac.36 After awarding joint
custody in a divorce action, the lower court had jurisdiction over the father’s application to
modify custody.37 Although the mother and child had relocated to Norway, they still had
significant connection to New York and there was substantial evidence available in New York
concerning the child’s care, protection, training, and personal relationships.38
An Albany County Court custody order in Matter of Blerim M. v. Racquel M., stipulated
that the parents involved would have joint custody of their minor children.39 The children would
reside with their mother during the school year since she was relocating to North Carolina and
then with the father during any school breaks lasting one week or longer and during the summer
34
Id.
Id. at 1068
36
Bjornson v. Bjornson, 20 A.D.3d 497, 498 (2nd Dep’t 2005).
37
Id. at 499
38
Id.
39
Blerim M. v. Racquel M., 41 A.D.3d 306, 310(1st Dep’t 2007). Updated: Blerim M. v. Racquel M., 94 A.D.3d
562, 942 N.Y.S.2d 87 (2012).
35
12
months.40 The order stipulated that the mother was to notify the father of any school activities
and provide copy of the school calendar at the beginning of the year; after relocating, the mother
failed to provide father with any information.
Less than six months after the children left New York, the father petitioned in the Bronx
County Family Court, seeking modification of the prior order of custody. The Court correctly
determined that New York had continuing exclusive jurisdiction to modify the joint order of
custody because the children had resided in New York for more than six months prior to the
filing of the petition.41 Moreover, when petitioner sought modification of the custody order, the
children had been in North Carolina for less than six months and he was still a resident of Bronx
County.
2. Examples of cases in which New York courts no longer exercised jurisdiction
over their custody determinations.
There are also limitations when determining jurisdiction from New York courts in
custody modification proceedings. There are two decisions from the 4th Department that
demonstrate these limitations. In King v. King, the father petitioned in New York court for
modification of his custody agreement with his ex-wife and asked for sole custody.42 The mother
and children had relocated to Arizona, and then settled in California in 1996 and were living
there at the time the petition was filed. The court concluded that New York State lacked
jurisdiction over the petition because the relationship between the father and his children had
become “so attenuated that a court could no longer find significant connections and substantial
evidence” tied to New York. 43 Furthermore, there had been no visitation by the children to New
40
Id.
Id.
42
King v. King, 15 A.D.3d 999, 1000 (4th Dep’t 2005).
43
Id.
41
13
York since October 2007, and based on the complete absence of the children from the state for
approximately seven years the court concluded that jurisdiction no longer existed.
Similarly, in Clark v. Clark, the 4th department ruled that New York lacked subject matter
jurisdiction to modify a custody order where children had been residing in Florida for the past six
years and New York lacked substantial evidence as to their care, training, and personal
relationships.44 Even if the children had significant connection to New York, substantial
evidence was no longer available in-state, given that the children had resided out-of-state for the
past six years and events that formed the basis of the alleged change of circumstances all
occurred out-of-state.45
In Zippo v. Zippo, New York Family Court determined that they lacked jurisdiction to
modify a prior order of custody, per father’s request, given that the mother and the child had not
lived in New York since the summer of 2000.46 The children returned to New York only for a
three-day visit each year and New York was not the child’s home state. There was no evidence
available in New York concerning the child’s care, protection, training, and personal
relationships.47
B. Modification of Custody Orders originating in other States
S 76-b. Jurisdiction to modify determination.
Except as otherwise provided in section seventy-six-c of this title, a court of this state
may not modify a child custody determination made by a court of another state unless a
court of this state has jurisdiction to make an initial determination under paragraph (a) or
(b) of subdivision one of section seventy-six of this title and: (1) The court of the other
state determines it no longer has exclusive, continuing jurisdiction under section seventysix-a of this title or that a court of this state would be a more convenient forum under
section seventy-six-f of this title; or (2) A court of this state or a court of the other state
44
Clark v. Clark, 21 A.D.3d 1326, 1327 (2005). Distinguished by Steven v. Nicole, 308 P.3d 875 (Alaska 2013)
Id.
46
Zippo v. Zippo, 41 A.D.3d 915, 916(3rd Dep’t 2007).
47
Id.
45
14
determines that the child, the child`s parents, and any person acting as a parent do not
presently reside in the other state. 48
If the court in the initial decision state no longer exercises its continuing subject matter
jurisdiction, another state may exercise its continuing subject matter jurisdiction over the matter,
provided it is authorized to do so under UCCJEA.49 Accordingly, the courts of a second state
cannot exercise continuing subject matter jurisdiction over the custody matter unless, at the time
of the custody proceeding is commenced in that second state, the second state can meet the same
criteria regarding the child’s residency at the initial decision state. If a court in either the initial
decision state or another state is exercising continuing subject matter jurisdiction over the matter,
a New York court may not modify a determination regarding child custody or visitation made by
the court of the other state.
Even though the child and one parent still live in New York, New York lacks jurisdiction
to determine whether to modify the prior custody determination rendered in another state if the
other parent continues to reside in the rendering state. If there is a dispute as to whether the
rendering state’s exclusive jurisdiction continues, it must be resolved in the rendering state.
In urgent circumstances, such as when a parent and child flee their home state due to
threats of mistreatment or abuse, the court of the forum state are authorized to exercise
emergency jurisdiction in order to protect the child, and an interim custody order to protect the
child pending a hearing on the issue is appropriate. The assumption by the state court of
emergency in a child custody dispute subject to a sister state custody order, pursuant to the
UCCJEA, does not confer upon the state exercising emergency jurisdiction the authority to make
permanent custody dispositions. A New York court has temporary emergency jurisdiction if the
48
49
N.Y. Dom. Rel. Law § 76-b (McKinney).
Id.
15
child is present in the state and the child has been abandoned or it is necessary in an emergency
to protect the child, a sibling, or parent of the child.
1. Example of a case where New York state exercised jurisdiction over a
custody order originating in another state/country.
There are currently no 4th Department decisions concerning modification of a custody
agreement that originated in another state. A case often cited in New York is Hector G. v.
Josefina P., which concerned a father who brought action in Bronx County for enforcement of
default order of custody issued by a court in the Dominican Republic.50 The family had a history
of domestic violence and the mother eventually fled the Dominican Republic for the United
States. After all family members were living in New York and the father sought to reclaim the
children, who were living with their mother, new domestic violence threats surfaced. The court
found that although New York was not the children’s “home state”, for purposes of the
UCCJEA, it would consider taking jurisdiction because the Dominican judge, who had little
knowledge of the abuse allegations, declined jurisdiction and the entire family was living in New
York.51 The court relied on N.Y. Domestic Relations Law section 75 and section 76-g, which
indicate that courts can and should assume jurisdiction, when otherwise permitted to do so, in
cases involving allegations of domestic abuse.52
Although the Dominican Republic was the children’s “home state,” the children became
permanent legal residents of the United States and had significant connections with New York,
where they resided with respondent and attended public school. The Dominican court declined to
retain jurisdiction and indicated that New York was an appropriate forum for the resolution of
50
Hector G. v. Josefina P., 2 Misc. 3d 801, 802 (Sup. Ct. 2003).
Id. at 804.
52
Id. at 811.
51
16
the custody matter.53 The Supreme Court held that: (1) the court’s exercise of temporary
emergency jurisdiction was warranted; (2) the court could not exercise “home state” jurisdiction
since the Dominican Republic, and not New York, was the children’s “home state;” but (3)
court’s exercise of initial jurisdiction over child custody dispute was warranted; (4) New York
was a more convenient forum for resolution of dispute; and (5) mother had not engaged in
unjustifiable conduct when she relocated with children to New York, as would warrant court’s
refusal to exercise jurisdiction.54
2. Examples of a case where New York state lacked jurisdiction over a
custody order originating in another state
In Stocker v. Sheehan, the mother petitioned to modify a Rhode Island custody and
visitation order as well as part of judgment of divorce pertaining to child support in New York
State.55 The lower court granted the mother’s application and denied the father’s cross motion to
dismiss the petition and for summary judgment. On appeal, the 1st department held that the lower
court was barred from hearing the petition, absent declination of jurisdiction by Rhode Island.56
VII.
Stipulation Under UCCJEA
A. Parties Cannot Stipulate jurisdiction
Because the UCCJEA establishes the requirements for subject matter jurisdiction
regarding custody and visitation issues, the parties cannot waive these requirements by
agreement and stipulation. The issue of whether subject matter jurisdiction could be stipulated to
be first decided utilizing the UCCJA and was later incorporated after New State adopted the
UCCJEA.
53
Id. at 822.
Id.
55
Stocker v. Sheehan, 13 A.D.3d 1, 3 (1st Dep’t 2004). Distinguished by Michael McC. v. Manuela A., 48 A.D.3d
91, 93 (2007)
56
Id. at 7
54
17
In Koshetz v. Lamberti, 633 N.Y.S.2d 610 (2nd Dep’t), a mother and father entered into
an agreement regarding custody and visitation. By further agreement, both parties stipulated that
New York State would have jurisdiction to resolve any future issues arising regarding custody
and visitation. The father brought an action to enforce the stipulation and the mother moved to
have the matter transferred to Florida, where the children resided. The court affirmed the lower
court’s determination relative to the issue of jurisdiction because the “parties” stipulation
requiring New York to retain jurisdiction notwithstanding the parties’ rights under the UCCJA
[could not] be enforced” and that subject matter jurisdiction [could not] be waived.57
B. Koshetz v. Lamberti Incorporated Under the UCCJEA
In Arnold v. Harari, the father filed for divorce and moved by order to show cause for
custody and of children.58 The father and mother stipulated that New York would have
jurisdiction to resolve the above issues. The mother took the children to Israel as agreed to in the
stipulation, but then failed to return to New York with the children. The mother then moved to
vacate the stipulation and claimed New York lacked subject matter jurisdiction. The Third
Department ultimately found that New York did have subject matter jurisdiction. However, in
doing so, it affirmed the holding in Koshetz that “a party [could not] bestow subject jurisdiction
by waiver or stipulation” and incorporated that holding to UCCJEA.59 The court looked at the
long-time residency of the children in New York and the stipulation of jurisdiction to New York
as proof that the mother intended the children to only temporarily reside in Israel.60
C. Inability to Stipulate Subject matter jurisdiction recognized by the
Fourth Department
Koshetz v. Lamberti, 262 A.D.2d 611, 693 N.Y.S.2d 610 (2 nd Dep’t 1999).
Arnold v. Harari, 4 A.D.3d 644, 645 (3rd Dep’t 2004). Distinguished by Felty v. Felty, 66 A.D.3d 64 (2nd Dep’t
2009)
59
Id.
60
Id. at 646.
57
58
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In DeJac v. DeJac, the parties entered an order by consent that was issued in New York
and that allowed for Georgia to have jurisdiction for future matters involving visitation
modifications.61 The mother turned over custody of the children to the father in New York
without court intervention but later changed her mind and wanted the children returned to her.
The father filed an order to show cause to modify the original custody agreement. The Supreme
Court ordered the children be turned over to the mother in Georgia and found New York to be an
inconvenient forum. The Fourth Department reversed and held that New York was not an
inconvenient forum. In its decision, the Fourth Department cited Koshetz v. Lamberti and noted,
“parties cannot, by agreement, confer jurisdiction on either state.”62
VIII. Inconvenient Forum- Grounds for Declining Jurisdiction
A. New York Domestic Relations Law
Except as otherwise provided in Section seventy-six-c of this title, a court of this state
which has made a child determination consistent with section seventy-six or seventy-sixb of this title has exclusive, continuing jurisdiction over determination until: (a) a court of
this state determines that neither the child, the child and one parent, nor the child and a
person acting as a parent have a significant connection with this states and that substantial
evidence is no longer available in this state concerning the child’s care, protection,
training, and personal relationships; or (b) a court of this state or a court of another state
determines that the child, the child’s parents, and any person acting as a parent do not
presently reside in this state.63
A court of this state which has jurisdiction under this article to make a child custody
determination, may decline to exercise its jurisdiction at any time, if it determines that it is an
inconvenient forum under the circumstances and that court of another state is a more appropriate
forum.64 The issue of inconvenient forum may be raised upon motion of a party, the Attorney for
the Child, or upon the court’s own motion, or request of another court.
61
DeJac v. DeJac, 17 A.D.3d 1066, 1068 (2005)
Id.
63
N.Y. Dom. Rel. Law § 76-c (McKinney).
64
Id.
62
19
Before determining whether it is an inconvenient forum, a court of this state shall
consider whether it is appropriate for a court of another state to exercise jurisdiction. For this
purpose, the court shall allow the parties to submit information and shall consider all relevant
factors, including:
(a) whether domestic violence or mistreatment or abuse of a child or sibling has occurred
and is likely to continue in the future and which state could best protect the parties and
the child; (b) the length of time the child has resided outside this state; (c) the distance
between the court in this state and the court in the state that would assume jurisdiction;
(d) the relative financial circumstances of the parties; (e) any agreement of parties as to
which state should assume jurisdiction;(f) the nature and location of the evidence
required to resolve to the pending litigation, including testimony of the child; (g) the
ability of the court of each state to decide the issue expeditiously and thee procedures
necessary to present the evidence; and (h) the familiarity of the court of each state with
facts and issues in the pending litigation.65
B. Grounds the Courts Use to Decline Jurisdiction
In several cases, the courts of New York State, including the Fourth Department, have
declined to exercise jurisdiction because they found New York to be an inconvenient forum.
1. Fourth Department Cases
A recent Fourth Department decision and in which the child at issue was represented by
the Children’s Legal Center is Dei v. Diew.66 The father appealed a finding that Erie County
Family Court lacked jurisdiction over his petition seeking custody.67 The Court declined
jurisdiction following a motion of the Law Guardian. In affirming the Family Court’s ruling, the
Fourth Department agreed that the Law Guardian would be unable to effectively represent the
child “because of the geographical distance between her and the children and the fact that the
65
Id.
Dei v. Diew, 56 A.D.3d 1212, 1213 (4th Dep’t 2008)
67
Id.
66
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evidence necessary to determine the best interests of the children was not available in this state
because the children has resided in Nebraska for more than four years.”68
In Clark v. Clark, the parties were married and had children in Texas. The parties then
moved to New York and in 1997 and a judgment of divorce was granted that included custody
and visitation orders. The mother moved with the children to Texas, Kentucky, and then to
Florida. The father filed an order to show cause regarding custody due to a substantial change in
circumstances. The Supreme Court dismissed the application based on lack of subject matter
jurisdiction. In affirming the Supreme Court’s determination, the Fourth Department found that
New York would be an inconvenient forum because the evidence regarding the children’s care,
protection, training, and personal relationships were no longer in New York.69 In addition, the
Court noted that the allegations relative to the change in circumstances occurred in Florida.70
In Schumaker v. Opperman, the mother petitioned the court for custody of the parties’
two children.71 Mother and children lived in Michigan but resided in New York for four months
immediately before the proceeding. The Supreme Court, Monroe County, concluded that New
York had jurisdiction and therefore was a convenient forum. The Fourth Department reversed
ruling that the lower court could entertain the motion, but should not have summarily concluded
that New York was a more convenient forum.72 In its decision, the Court referred to the factors
that should be considered when determining subject matter jurisdiction and held that the record
was “insufficient to allow review of lower courts summary conclusion.73 The court remitted the
68
Id.
Clark v. Clark, 21 A.D.3d 1326, 1328 (2005).
70
Id.
71
Schumaker v. Opperman, 187 A.D.2d 1033 (4th Dep’t 1992)
72
Id.
73
Id.
69
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case back to Supreme Court to determine whether New York or Michigan was the more
appropriate/convenient forum.74
2. Third Department Cases
In Zippo v. Zippo, parties stipulated in 2000 that the father be granted three days of
visitation during the summer at the correctional facility where he was incarcerated.75 The mother
moved to California that year and only returned for the agreed visitation schedule. The father
then moved to modify and the lower court determined that New York no longer had jurisdiction
and would be an inconvenient forum.76 The Third Department affirmed the decision and noted
the child had not lived in New York for six years and that the child did not have a significant
connection with New York.77 Furthermore, substantial evidence was no longer available in New
York concerning the child’s care, protection, training, and personal relationships.78
In Ellor v. Ellor, the mother and father entered into a stipulation wherein the mother
moved to New Jersey with the child.79 Six weeks after the stipulation, the father moved to
modify and the Supreme Court, Broome County, ruled that New York was an inconvenient
forum.80 The Third department affirmed and noted that evidence related to the child’s present
and future care was in New Jersey and that the child’s school records, teachers, friends, and
doctors are also located in New Jersey.81
IX.
Cases where jurisdiction should not have been declined
In Michael M. v. Tanya E, the Family Court of Monroe County, awarded custody of
children to the father and the mother appealed. The fourth department held that the trial court
74
Id.
Zippo v. Zippo, 41 A.D.3d 915, 916 (3rd Dep’t 2007).
76
Id.
77
Id.
78
Id.
79
Ellor v. Ellor, 145 A.D.2d 773, 775 (3rd Dep’t 1988)
80
Id.
81
Id.
75
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properly exercised jurisdiction over custody and visitation matters, and change of custody from
former wife to former husband was in the best interest of the children.82 In coming to its
decision, the Court found that the Family Court properly exercised jurisdiction over the child
custody dispute, where the parties’ divorce and original custody and visitation orders had been
entered in the same court, and the court in Kentucky, where former wife and children were
currently residing, had declined to exercise jurisdiction.83 The court further found that the
determination regarding the change of custody from mother to father was in the best interests of
the children based upon the mother’s history of violence and repeated disregard for court orders
directing her not to interfere with the father’s visitation.84
In Adams v. McPherson, following a divorce judgment, the child resided with the mother
in North Carolina and the father continued to reside in New York.85 The father commenced
action in New York, alleging that the mother violated the custody/visitation agreement.86 The
Family court dismissed the petition and transferred jurisdiction over the child to the North
Carolina District Court following father’s default in a proceeding and the mother initiated there
to acquire jurisdiction and modify custody and visitation.87 The Third Department reversed and
remanded the case back to Family Court. In explaining its decision, the Court stated: “Family
court erroneously concluded that the stipulation establishing the primary residence of the child in
North Carolina was fatal to petitioner’s position.88 The Court held that while the relocation may
be a factor in determining that the New York forum has become inconvenient, the factors set
forth in the Domestic Relations Law, such as petitioner’s ability to fully participate in the North
82
Michael M. v. Tanya E., 256 A.D.2d 1137, 1138 (1998) Distinguished by Reis v. Zimmer, 263 A.D.2d 136, 700
N.Y.S.2d 609 (1999) amended, 270 A.D.2d 968, 710 N.Y.S.2d 259 (2000)
83
Id.
84
Id.
85
Adams v. McPherson, 193 A.D.2d 833, 834 (3rd Dep’t 1993)
86
Id.
87
Id.
88
Id. at 835
23
Carolina proceeding and the proximity in time of the prior New York proceedings, merit
consideration.”89
In Metcalf v. Turner, the mother moved to Massachusetts and the father petitioned in
Family Court to order the mother to return to New York with the children. The court dismissed
the father’s motion on forum non-convenient grounds. The Third department reversed, finding
that the mother left New York just two months after a court order was issued relative to
visitation. The court also noted it was the mother who opted to move from New York and that
evidence regarding the child’s present and past care, and personal relationships as well as
educational, medical, psychological record were in New York.90
X.
Conclusion
In 2002, New York State enacted the UCCJEA in its Domestic Relations Law of Article
5-A in an effort to apply the UCCJA and the PKPA more consistently. However, there are
limitations on the jurisdiction the New York courts have regarding modification members.
Because the UCCJEA establishes the requirements for subject matter jurisdiction regarding
custody and visitation issues, the parties cannot waive these requirements by agreement and
stipulation. Before determining whether it is an inconvenient forum, a court of this state shall
consider whether it is appropriate for a court of another state to exercise jurisdiction as outlined
in sections 76-(f) and 76-(f)(2) of the Domestic Relations Law. In short, the courts should
consider whether there is substantial evidence concerning the child’s care, protection, training,
and personal relationships in New York state prior to any determinations.
89
90
Id.
Metcalf v. Turner, 154 A.D.2d 792, 793 (3rd Dep’t 1989)
24