Lawyers Manual - Unified Court System

Moving On: UCCJEA, The Hague Convention, and Relocation 109
practice. This section is intended to help advocates for domestic violence
victims negotiate these realities.
What to Consider if Your Client Wants to Leave New York
To protect your client’s safety, it may be tempting to advise her just to leave
with the children even without a court order. If your client is considering this
option, the first thing you should determine is the father’s legal status and
whether there are any pending cases or prior court orders.
Has Paternity Been Established?
Whether paternity has been established is an important factor for victims to
consider in deciding whether to seek a court order to relocate before leaving the
jurisdiction. If paternity has been established, then the father has a right to seek
custody and visitation of the children and the mother probably should not leave
the jurisdiction without seeking a court order. There is less risk in leaving
without a court order when paternity has not been established, but it is still not
an easy decision. Although staying in the jurisdiction to obtain an order must
always be weighed against dangers, before advising your client that she can
freely leave, you should consider: the severity of the domestic violence, the age
of the child, the nature of the relationship between the father and the child, and
the amount of their contact. The closer and longer the relationship between the
abuser — even if he is not legally the children’s father — with the children, the
greater the risk of leaving without a court order. In such a case, a court would be
more likely to require the victim’s return to New York. Keep in mind that even
an unacknowledged father may file for paternity and custody or visitation. If he
does this, your client still may have to come back to the jurisdiction.
Some clients may want the certainty of a custody order even though the
father has not established paternity. Some clients may believe that the father will
hunt them down and that they will need a custody order in hand. If a client
decides she will not feel safe without the order and paternity has not been
established, she will have to serve paternity and custody papers on the father. In
general, it is advisable to obtain a court order where possible.
How Do I Know if Paternity Has Been Established?
Clients are often not sure whether or not paternity has been legally
established. Paternity can be established in three ways: through marriage, an
order of filiation, or a validly executed acknowledgment of paternity signed
after July 1, 1993.