Lawyers Manual - Unified Court System

Moving On: UCCJEA, The Hague Convention, and Relocation 101
was filed. There can only be one home state, so if the child moved out of New
York 5.5 months ago, but lived here for six consecutive months before that, then
New York is the home state. The UCCJEA and comments repeatedly emphasize
that in initial custody determinations, i.e., cases in which there has never been a
custody order from a court, the home state determination is controlling.
But what if the child has moved around so much that there is no clear home
state? What if the child had been overseas prior to the court filing? What if the
child had lived in another state until 5.5 months ago but his entire extended
family is in New York and has always been in New York? The UCCJEA
recognizes these possibilities. If no state “claims” this family, then even if New
York cannot technically qualify as the home state, it may still have jurisdiction
to make the initial custody determination. In these cases, the court will consider,
first, whether another state can or is claiming to be the home state. If not, then
the court will ask whether the child and at least one parent have “significant
connections” with New York and substantial evidence is available in this state
concerning the child’s care, protection, training and personal relationships. If
another court clearly has “home state” priority but declines to exercise it
because it determines that New York is more appropriate, then New York can
accept jurisdiction. 8
Continuing Jurisdiction9 The UCCJEA helps clarify not only which court should make the initial
custody determination, but also which state should hear any modifications to an
initial custody determination. Essentially, the UCCJEA states that the court that
issued the initial custody decision gets a right of first refusal over the case
regardless of how long ago the order was entered: if that court, whether it is a
New York Court or another state, decides that it is no longer the appropriate
forum to hear the case because one or both the parents and the child no longer
live there, then another state is free to modify the order, but, in general, courts
will want to retain jurisdiction over their own orders. In Vernon v Vernon, 10 for
example, the Court of Appeals held that New York retained continuing
jurisdiction over modifications of a New York divorce custody judgment even
though the mother and child had been living in Wyoming for ten years. This
heavily-weighted deference to the original court can prove very problematic for
domestic violence victims who are seeking protection in a new jurisdiction.
Temporary Emergency Jurisdiction11 UCCJEA’s provision on temporary emergency jurisdiction is one of the
major innovations of the UCCJEA and key to litigating interstate custody cases
that involve domestic violence. The UCCJEA, as opposed to its predecessor, the