New York Law Journal

Tuesday, March 26, 2002

Law And The Family

JURISDICTION UNDER NEW CHILD CUSTODY JURISDICTION, ENFORCEMENT ACT

By Joel R. Brandes

On April 28, 2002, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) will replace the Uniform Child Custody Jurisdiction Act (UCCJA), which was adopted in New York in 1977, as Article 5-A of the Domestic Relations Law. [FN1] Title 2 of the UCCJEA is a jurisdictional statute that revises the law on child custody jurisdiction in light of the mandates of the Parental Kidnapping Prevention Act (PKPA). [FN2]

Attorneys must be aware of the fact that practice under the UCCJEA differs from practice under the UCCJA, in many ways. The term "best interest" does not appear in the UCCJEA. This is to make it clear that the standards for asserting subject matter jurisdiction under the UCCJEA are different from the substantive state custody law. The purpose of the UCCJEA is to avoid conflicting custody orders and simultaneous custody proceedings in different states and to comply with the PKPA.

Unlike the UCCJA, the UCCJEA gives the "home state" priority in asserting jurisdiction to make a child custody determination, as does the PKPA, which requires that full faith and credit be given to a custody determination only when that determination is made by the home state, there is no home state or the home state declines to exercise jurisdiction. Under the UCCJA there are four independent bases for a court to exercise jurisdiction to make an initial custody determination. They are "home state" jurisdiction, "significant connection" jurisdiction, "emergency" jurisdiction and "more appropriate forum" jurisdiction. The home state does not have a priority, as under the UCCJEA. Thus, a UCCJA "significant-connection" jurisdiction custody determination would have to be enforced even if it would not be enforced under the PKPA. Moreover, the "emergency jurisdiction" provisions of the UCCJA do not specify that emergency jurisdiction may only be exercised to protect the child on a temporary basis until the court with jurisdiction issues a permanent order. As a consequence some New York courts have interpreted the UCCJA to authorize permanent custody orders. The UCCJEA contains a section on emergency jurisdiction which addresses these issues.

The UCCJA does not clearly state that the first state to grant custody retains exclusive continuing jurisdiction to modify that custody order. As a consequence, some New York courts have held that the jurisdiction of a New York court to modify its own custody order continues until the last contestant leaves the state, regardless of how many years the child has lived outside the state or how tenuous the child's connections to the state have become. Other New York courts have held that continuing modification jurisdiction ends as soon as the child has established a new home state, regardless of how significant the child's connections to New York remain. The UCCJEA clarifies this area of the law.

Making Initial Determination

DRL 76(1) of the UCCJEA provides the exclusive jurisdictional basis for a New York court to make a child custody determination. [FN3] Under DRL 76(1), a New York court has jurisdiction to make an initial child custody determination only if:

a) New York 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, [FN4]

b) a court of another state does not have jurisdiction under DRL 76(1)(a), or a court of the home state of the child has declined to exercise jurisdiction on the ground that New York is the more appropriate forum under DRL 76-f or 76-g, 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; [FN5]

c) all courts having jurisdiction under DRL 76 (1)(a) or (b) 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 DRL 76-f or 76-g; or

d) no court of any other state would have jurisdiction under the criteria specified above. [FN6]

DRL 75 defines the "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, "home state" means the state in which the child lived from birth with a parent, or a person acting as a parent. A period of temporary absence of a parent, or a person acting as a parent is part of the six-month period. [FN7] DRL 75 defines "person acting as a parent" as a person, other than a parent, who: has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and has been awarded legal custody by a court or claims a right to legal custody under the law of New York [FN8] . "Physical custody" means the physical care and supervision of a child. [FN9]

"More appropriate forum" jurisdiction is available under DRL 76(1)(a)(3) when all states with jurisdiction under DRL 76(1)(a)(1) and (1)(a)(2) determine that New York is a more appropriate forum. The determination has to be made by all states with jurisdiction under DRL 76 (1)(a)(1) and (1)(a)(2). Jurisdiction does not exist in New York simply because the home state determines that New York is a more appropriate place to hear the case if there is another state, other than New York, that could exercise significant connection jurisdiction under DRL 76(1)(a)(2).