Joel R. Brandes and Carole L. Weidman
OFTEN WE yearn for simpler times, but when it comes to child
custody and visitation, our laws have improved with age.
The Supreme Court's 1953 plurality decision in May v. Anderson
[FN1] held that custody and visitation orders were not "final" judgments but
were readily modifiable in the state of rendition and elsewhere. Consequently,
it was not uncommon for a second forum to substitute its preferences for those
of the first forum, often tipping the balance in favor of the local party. The
lack of finality to custody orders also rendered the Full Faith and Credit
Clause impotent in custody disputes.
For example, Mary Jane, a middle-class, full-time mother of
two boys casually waved goodbye to them one day as they happily left with
their father on a seemingly pleasant weekend fishing trip in 1975. Soon after,
she was fighting tooth-and-nail for the return of the children to her home in
New York, in a Virginia Family Court, years after the judgment of divorce
awarded her custody in New York.
The state of the law invited child abduction and self-help,
placing children at grave risk. When it came to children new meaning was given
to the term "possession is nine-tenths of the law."
Responding to a growing need, the National Conference of
Commissioners on Uniform State Laws drafted the Uniform Child Custody
Jurisdiction Act (UCCJA). By the 1980s it had been adopted, with variations,
by all states and the District of Columbia. New York adopted it as Article 5-A
of the Domestic Relations Law (DRL). [FN2]
Conflicting Jurisdiction
Before the UCCJA there were four well established bases for
custody jurisdiction: (1) The state where the defendant was domiciled,
resident or was personally served, i.e., subject to personal jurisdiction, had
child custody jurisdiction. (2) The state where the child was domiciled had
custody jurisdiction, since it was concerned with the child's "status," that
state being the domicile of the father or the person with whom the child was
living. (3) The state where the child was physically present had custody
jurisdiction, because of its concern over the child's welfare and its
immediate access to custodial information. (4) Initial jurisdiction could be
exercised on any one of the above bases, frequently resulting in concurrent
custody jurisdiction in more than one state. [FN3]
Passage of the UCCJA resulted in codification of four bases of
jurisdiction set forth in DRL s75-d and the provision in DRL s75-o that
prohibits modification of a custody order of a court of another state under
certain circumstances. These are that it appears to the court of this state
that the court that rendered the order does not now have jurisdiction under
prerequisites substantially in accordance with Article 75 or has declined to
assume jurisdiction to modify the order and the court of this state has
jurisdiction.
Under the provisions of the UCCJA, a court of this state that
is competent to decide child custody matters has jurisdiction to make a child
custody determination by initial or modification decree but only when one of
four specified sets of circumstances exists. Physical presence of the child,
while desirable, is not a requisite for jurisdiction to determine his custody
[FN4] and physical presence of the child, or of the child and one of the
contestants, is not alone sufficient to confer jurisdiction to make a child
custody determination. [FN5]
In the absence of such circumstances, the custody decrees of
sister states entered pursuant to the UCCJA must be enforced. Where New York
does not satisfy any of the jurisdictional requirements, it is error for a
court in New York to take jurisdiction of a custody proceeding. [FN6]
Likewise, these same jurisdictional requirements are used to
determine whether a court of another state that has rendered a custody decree,
had proper jurisdiction at the time of such decree and currently has
jurisdiction to modify that decree.
The UCCJA offers a standard for determining whether the
necessary predicate for jurisdiction exists. Even if it does, the inquiry does
not end there. The court must then determine whether to exercise its
jurisdiction. The UCCJA guides the court by asking it to consider whether it
is an inconvenient forum, or whether the conduct of the parties militates
against an exercise of jurisdiction.
It also provides a common sense approach that notwithstanding
that New York has jurisdiction, a court shall not exercise its jurisdiction if
when the proceeding began another proceeding concerning the custody of the
child was pending in a court of another state exercising jurisdiction
substantially in conformity with UCCJA. [FN7]
New York Jurisdiction
Certain circumstances allow for New York courts to claim
jurisdiction to make a child custody determination. The first of these is when
New York is the home state of the child at the beginning of the custody
proceeding. Another basis is where New York had been the child's home state
within six months before commencement of such proceeding and the child is
absent from New York because of his removal or retention by a person claiming
his custody or for other reasons, and a parent or person acting as parent
continues to live in this state. [FN8]
Under the UCCJA, "home state" means the state in which the
child, when the custody proceeding begins, has resided with the parents, a
parent, or a person acting as parent for at least six consecutive months.
[FN9] If a child less then 6 months old at the time of the commencement, home
state means the state in which the child has resided with any of such persons
for most of the time since birth.
The UCCJA provides that a New York court has jurisdiction to
make a child custody determination when it is in the best interest of the
child that a New York court assume jurisdiction because the child and his
parents, or the child and at least one contestant, have a significant
connection with New York, and there is, within the jurisdiction of the court,
substantial evidence concerning the child's present or future care,
protection, training and personal relationships. [FN10] While the general
language of the provision permits a flexible approach to various fact
patterns, it has been said that maximum rather than minimum contacts with New
York are required and that the imprecision of the language must not destroy
the legislative design to limit jurisdiction rather than proliferate it.
[FN11]
At the same time, overseeing the interests of children is the
driving force behind the act. As such, a court of this state has jurisdiction
to make a custody determination when the child is physically present in the
state and has been abandoned or an emergency necessitates protection of the
child. [FN12] To meet the "emergency" it must be demonstrated that the child
would suffer physically or mentally in some manner if jurisdiction were not
exercised. While specific allegations of abuse which are substantiated by
testimony and documentary evidence may trigger "emergency" jurisdiction, vague
and unsubstantiated allegations which are denied are insufficient. [FN13]
When it appears that no other state would have jurisdiction
under prerequisites substantially in accordance with those mentioned, or
another state has declined to exercise jurisdiction on the ground that New
York is the more appropriate forum to determine the custody of the child, and
it is in the best interest of the child, New York can assume jurisdiction.
Parental Kidnapping
The UCCJA must be read in conjunction with the federal
Parental Kidnapping Prevention Act of 1980 (PKPA). [FN14] The PKPA empowers
the appropriate authorities of every state to enforce according to its terms,
any child custody determination made consistently with the provisions of the
PKPA by a court of another State. The enforcing State cannot modify the
determination except as provided in subdivision (f) of the PKPA.
Under the PKPA, [FN15] a child custody court determination is
consistent with the provisions of the PKPA only if such court has jurisdiction
under the law of such state and, meets one of the following conditions:
(1) such state is the home state of the child on the date of
the commencement of the proceeding, or had been the child's home state within
six months before the date of the commencement of the proceeding and the child
is absent from such state because of his removal or retention by a contestant
or for other reasons, and a contestant continues to live in such state;
(2) it appears that no other state would have jurisdiction
under such home state provision and it is in the best interest of the child
that a court of such state assume jurisdiction because the child and his
parents, or the child and at least one contestant, have a significant
connection with such state other than mere physical presence in the state and
there is available in that state substantial evidence concerning the child's
current or future care, protection, training and personal relationships;
(3) the child is physically present in such state and has been
abandoned or it is necessary in an emergency to protect the child because he
has been subjected to or threatened with mistreatment or abuse;
(4) it appears that no other state would have jurisdiction
under the above conditions, or another state has declined to exercise
jurisdiction on the ground that the state whose jurisdiction is at issue is
the more appropriate forum to determine the custody of the child, and it is in
the best interest of the child that such court assume jurisdiction; or,
(5) the court has continuing jurisdiction pursuant to the
statute. [FN16]
The jurisdiction of a court of a state that has made a child
custody determination consistently with the provisions of the PKPA continues
as long as the court has jurisdiction under the law of that state and that
state remains the residence of the child or of any contestant. [FN17]
Because of the Supremacy Clause of the U.S. Constitution, the
PKPA controls and preempts any inconsistent state law, including the UCCJA,
[FN18] that conflicts with the jurisdictional provisions of the PKPA. The
federal statute, in effect, places continuing exclusive jurisdiction for
modification purposes in the "home state" as long as the child or one
contestant remains in such state and even though a second state currently has
a greater concern with the child's welfare.
The jurisdictional differences between the PKPA and the UCCJA,
especially as to enforcement and modification, have precipitated considerable
confusion and uncertainty. For example, under the UCCJA "Home State" means the
state in which the child at the time of the commencement of the custody
proceeding, has resided with his parents, a parent, or a person acting as
parent for at least six consecutive months. [FN19] In the case of a child less
then six months old at the time of the commencement of the proceeding. "Home
State" means the state in which the child has resided with any of such persons
for a majority of the time since birth.
In contrast, under the PKPA "Home State" means the state in
which, immediately preceding the time involved, the child lived with his
parents, a parent or a person acting as parent, for at least six consecutive
months, and in the case of a child less than six months old, the state in
which the child lived from birth with any of such persons. Under the PKPA
periods of temporary absence of any of such persons are included in the
six-month or other period.
The UCCJA definition of "home state" uses the word "resided"
while the PKPA definition of it uses the word "lived." Thus, the child must be
a "resident" although not a domiciliary, to qualify for home state
jurisdiction under the UCCJA. In contrast, under the PKPA residence is not a
prerequisite to qualify for "home state" jurisdiction. The child simply has to
live in the state.
FN1. 345 US 528, 97 L.Ed. 1221, 73 S Ct 840.
FN2. Laws 1977, ch. 493, eff. Sept. 1, 1978.
FN3. See Sampsell v. Superior Court of Los Angeles County
(1948) 32 Cal2d 763, 197 P2d 739.
FN4. DRL s75-d(3).
FN5. DRL s75-d(2).
FN6. De Passe v. De Passe (1979, 4th Dept.) 70 AppDiv2d 473,
421 NYS2d 497.
FN7. Vanneck v. Vanneck (1980) 49 NY2d 602, 404 NE2d 1278.
FN8. DRL s75-d(1)(a).
FN9. DRL s75-d(5).
FN10. DRL s75-d(1)(b).
FN11. Vanneck v. Vanneck, supra.
FN12. DRL s75-d(1)(c).
FN13. Hernandez v. Collura (1985, 2d Dept.) 113 AppDiv2d 750,
493 NYS2d 343.
FN14. 28 USC 1738A
FN15. 28 USC 1738A(c)(1)(A)
FN16. 28 USC s1738A(c)
FN17. 28 USC s1738A(d).
FN18. Enslein v. Enslein, (1985, 2d Dept.) 126 AppDiv2d 973,
492 NYS2d 785.
FN19. DRL s75-d(5).
Joel R. Brandes and Carole L. Weidman have law offices in New
York City and Garden City. They co-authored, with the late Doris Jonas Freed
and Henry H. Foster, Law and the Family New York, and co-authored Law and the
Family New York Forms (both, Lawyers Cooperative Publishing).
6/24/97 NYLJ 3, (col. 1)
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