Did you relocate with your child during COVID-19?
Here’s what you need to know about residing outside New York State for over six months during the pandemic.
During the COVID-19 pandemic, many co-parents left New York state with their children and have not returned. So what will the courts determine about jurisdiction and residence outside the state for more than six months?
Well, it depends. If you live in any state except Massachusetts, it is critical to understand what your child’s “home state” is designated as, and why. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) 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.”
How Is the Decision Made?
According to that law, New York can only have jurisdiction to make an initial child custody determination if any of the following apply:
New York is the home state of your child—or—New York was the home state of your child within six months prior to the commencement AND your child is absent but a parent or other person acting as a parent lives in New York
No other state has jurisdiction—or—a state that is the home state of your child has declined to exercise jurisdiction on the ground that New York is a more appropriate forum under the UCCJEA AND both of the following factors are met:
The parties (child plus parent(s)) have a significant connection to New York other than mere physical presence, and
Substantial evidence is available in New York concerning the child’s care, protection, training and personal relationships;
All states having jurisdiction have declined to exercise jurisdiction on the ground that New York is a more appropriate forum
No state would have jurisdiction under any of the above
You should also consider whether your child was wrongfully removed and prevented from returning during the six month period. Or perhaps the absence was nothing more than a “period of temporary absence” and it’s considered part of the six month period that results in New York being the home state.
It’s also possible that New York can decline jurisdiction. This could happen if New York deems another forum more appropriate. Relevant factors considered here are domestic violence, abuse, financial circumstances, and more.
What About Prior Custody?
Another consideration is where the prior custody determination was made. If it was made in New York, the UCCJEA gives New York exclusive continuing jurisdiction, provided New York had appropriate jurisdiction under the home state rule to make the initial custody determination, and at least one parent still resides in New York. But if the prior custody determination was made in another state, other factors need to be considered.
When the court examines your child’s connection, it considers factors including:
- Whether any parent or relatives reside in New York
- The location of your child’s physicians or other providers
- Your child’s visits with a parent in New York
- Whether substantial evidence is available in New York concerning your child’s present and future welfare.
- Frequent Moving, Emergencies and More Complexities
- If your 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, then your child might not have a “home state” as designated by the UCCJEA. In this case, the courts will consider if substantial evidence is available in New York concerning the child’s care, protection, training, and personal relationships, among other factors. There is also temporary emergency jurisdiction that New York courts can exercise when the protection of your child, a sibling, or a parent needs to be considered.
In short, overstaying your temporary absence from New York does not automatically enable you to claim jurisdiction in another state. If your relocation was not with the 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, and this could harm your chances of obtaining ultimate custody.
It’s critical to review your individual position with regard to jurisdiction. Please don’t hesitate to email me at [email protected] to schedule an appointment today.
Here is my recent article in the New York Law Journal that discusses the issue in more detail: https://www.law.com/newyorklawjournal/2021/04/26/relocation-home-is-not-necessarily-where-the-heart-is/?slreturn=20210616170333