Lawyers Manual - Unified Court System

106 Liberty Aldrich and Lauren Shapiro
or children were taken without the parent’s consent? Should New York courts
accept the home state priority for countries that routinely rule against women and
fail to take domestic violence into account? These questions and others frequently
arise where children are taken out of the country by the abusive parent.
There are several arguments that advocates can make in these cases. If the
children have been taken out of the country, advocates first need to persuade the
court that the foreign jurisdiction does not have “home state” priority. Advocates
may be able to argue that the absence is “temporary” and should not be included
within the six month time period necessary to establish home state priority in
the foreign jurisdiction. New York courts have looked to the “totality of the
circumstances” to determine whether or not the absence should be considered
temporary, 30 including the intent of the parties. 31
Additionally, advocates should be prepared to argue that the foreign
jurisdiction should not be deemed the home state because it does not provide
conventional human rights protections for women in litigation. Allowing a
country that simply will not credit women’s testimony to take jurisdiction would
circumvent established public policy. Additionally, if the children are living in
the foreign jurisdiction with someone other than a parent, i.e. the child’s
grandparents or anyone without a custody order, advocates should look to the
definition section of the UCCJEA to argue that that jurisdiction cannot be the
home state because a home state is one in which “the child lived with a parent
or a person acting as a parent for at least six consecutive months.” 32
If the children are in New York but there may be a foreign home state,
advocates should similarly argue that it is not in the children’s interest for New
York to defer to that jurisdiction if that jurisdiction has arguably waived its
claim. In Hector G. v Josefina P., 33 the Bronx Supreme Court based its decision
to assume jurisdiction and modify an existing custody order from the
Dominican Republic on the UCCJEA provisions concerning appropriate forum
and its concern for protecting victims of domestic abuse.
Hague Convention
Although New York courts will generally look to the UCCJEA to determine
jurisdiction, if your client has fled to New York from a country outside the
United States or is considering fleeing to another country with her children,
provisions of the Hague Convention on the Civil Aspects of Child Abduction
(Hague Convention) will also be relevant. 34 Additionally, the Hague Convention
is important if a mother fears the father of her children and will flee the United
States with the children or has fled. Of course, the Convention only applies to
countries that have ratified it, which many have not.