Lawyers Manual - Unified Court System

102 Liberty Aldrich and Lauren Shapiro
UCCJA, took a step forward in providing safety for domestic violence victims
by clarifying that judges in New York may assert temporary emergency
jurisdiction not only when there is a risk to the child but also when there is a
risk to the mother. Specifically, it states that the court may take jurisdiction if
the child has been abandoned or jurisdiction is necessary to protect the child, a
sibling or parent of the child.
While this is a big plus for domestic violence victims, the UCCJEA is clear
that while the New York court may assert jurisdiction and issue a custody order,
it is only temporary. The jurisdiction and any order last only until an order is
obtained from the state having appropriate home state jurisdiction. If the New
York court is informed that a custody proceeding has been filed in another state,
as attorneys are required to do, the court must “immediately communicate with
the other court” about which state should take the case. What happens if there is
no other case? If a New York court issues a temporary custody order, that
determination may become final if the temporary custody order so provides
and this state becomes the child’s home state or the other state declines
jurisdiction. 12 The order must specify a period that the court considers adequate
to allow the person to obtain an order from the state having jurisdiction. 13 If a
child is in imminent risk of harm, then the order shall remain in effect until a
court having jurisdiction has taken steps to insure the child’s protection.
Inconvenient Forum14 Even if it has home state jurisdiction, a court in New York may decline to
exercise jurisdiction if it determines that it is an inconvenient forum and that a
court of another state is a more appropriate forum. In making this determination,
the court considers various statutory factors, including:
whether domestic violence or mistreatment or abuse of a child
or sibling has occurred and is likely to continue in the future;
which state could best protect the parties and the child;
the length of time the child has resided outside the state;
the distance between the two courts;
the relative financial circumstances of the parties;
agreements regarding jurisdiction;
the nature and location of evidence and witnesses;
the ability of the court of each state to decide the issue
expeditiously and the procedures necessary to present the
evidence; and