Lawyers Manual - Unified Court System
Lawyers Manual - Unified Court System Lawyers Manual - Unified Court System
110 Liberty Aldrich and Lauren Shapiro Marriage: Children born to a marriage are presumed to be the children of the marriage. 46 If your client is married to the child’s father, then he has an equal right to custody of the child and no proof of paternity is required for him to seek visitation or custody. A child’s birth father establishes paternity if he marries the mother, even after the birth of the child. If your client was married to someone other than the father at the time of the child’s birth, the husband at the time of the birth is presumed to be the father of the child. Only a court order can overcome this presumption. The husband would have the right to seek custody, and the mother would have to prove he is not the father. The biological father would have to file for and prove paternity. Order of Filiation: Either parent can file a petition in court to determine paternity. 47 A paternity petition can be filed in New York State if the mother, child, or putative father resides here, even if the child was not born in New York State. 48 Once paternity has been established, the court will enter an “order of filiation.” If your client is or was ever on welfare, an order of filiation may have been entered without your client’s knowledge because the Department of Social Services establishes paternity when filing for child support on behalf of the mother. Also, if your client is receiving child support pursuant to a court order, paternity has probably been established. Acknowledgment of Paternity: An Acknowledgment of Paternity is signed in the hospital after the birth of a child and has the same force and effect as an order of filiation. 49 Your client may not remember whether an acknowledgment of paternity was signed. If the child was born after 1995, if the father was at the hospital during or shortly after the birth, and if his name is on the birth certificate, he probably signed an acknowledgment of paternity. Paternity Has Been Established But There is No Court Order Concerning Custody Although courts often find that domestic violence is a legitimate reason for taking children from the jurisdiction, domestic violence victims should be cautious about leaving New York if paternity has been established even if there is no custody or visitation order. The father could file a custody or visitation petition in New York even after a victim leaves the jurisdiction, and if he files within six months New York will almost certainly have home state jurisdiction. If she leaves without the father’s consent and New York is the child’s home state, the father may be able to obtain a writ of habeas corpus directing that she return the child to New York immediately. He will have a strong case for a writ if the parties were living together with the children prior to her departure or he was regularly visiting with the child.
Moving On: UCCJEA, The Hague Convention, and Relocation 111 If the father obtains a writ, even if he is an abuser, your client will be required to return to New York, but she will have an opportunity to be heard. You should be prepared to argue that she did not “wrongfully” deny him access to the child and that her conduct was not “unjustifiable.” 50 You should document the domestic violence and establish that leaving was important for her and the child’s safety. Sheridan v Sheridan51 may be a helpful case. Although decided before the UCCJEA was passed, it held that there were exceptional circumstances, including domestic violence and economic necessity, warranting relocation of the mother with her child to Puerto Rico even though it was undisputed that the move would clearly deprive the father of “regular and meaningful visitation.” 52 If the father files for custody in New York after she flees but within six months, the first issue is whether your client wants to respond only in New York or whether she also wants to file for temporary emergency jurisdiction in her new location and ask that New York decline to exercise its home state priority. In most cases, your client would like to litigate in the refuge state for reasons of safety, travel, and cost considerations, but arguing that New York decline jurisdiction over the final custody decision will probably be a very tough sell. Additionally, it may be in your client’s interest to litigate in New York where the law supports domestic violence victims and where she has an attorney. In either case, you should ask the New York court to allow your client to retain temporary custody and to relocate immediately to her new location. Your success will largely depend on whether the court finds that the allegations of domestic violence are credible and that it is in the child’s best interest to remain where he or she is currently living. New York courts have awarded custody to domestic violence victims in such cases, even if they have relocated without a court order. 53 Although you may have an uphill battle, you can ask New York to decline to exercise its home state jurisdiction; the court can do so under the inconvenient forum provision of the UCCJEA. 54 The UCCJEA specifically delineates domestic violence as a factor for the court to consider in deciding whether or not to exercise jurisdiction. 55 Although decided under the UCCJA, the court in Swain v Vogt56 declined to exercise jurisdiction when the mother was forced to flee New York due to violence. The Court held that “[i]t is axiomatic that Family Court, having not yet made a decree concerning custody in this case, may decline to exercise its jurisdiction if it finds that it is an inconvenient forum to make a custody determination.” 57
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- Page 83 and 84: Primary Caretaker Litigating Custod
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- Page 99 and 100: The Law Regarding Child Welfare and
- Page 101 and 102: Representing Domestic Violence Vict
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- Page 109 and 110: Respondent Mothers Representing Dom
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- Page 117 and 118: This article is a practical guide f
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- Page 135 and 136: Notes Moving On: UCCJEA, The Hague
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- Page 139 and 140: The Uniform Child Custody Jurisdict
- Page 141 and 142: UCCJEA and Domestic Violence: A Cas
- Page 143 and 144: Safety Issues UCCJEA and Domestic V
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- Page 147 and 148: Notes UCCJEA and Domestic Violence:
- Page 149 and 150: The Hague Convention on the Civil A
- Page 151 and 152: Civil Aspects of International Chil
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- Page 155 and 156: Conclusion Civil Aspects of Interna
- Page 157 and 158: Domestic Violence and Money 10 Repr
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- Page 167 and 168: Address Confidentiality Victim Who
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Moving On: UCCJEA, The Hague Convention, and Relocation 111<br />
If the father obtains a writ, even if he is an abuser, your client will be<br />
required to return to New York, but she will have an opportunity to be heard.<br />
You should be prepared to argue that she did not “wrongfully” deny him access<br />
to the child and that her conduct was not “unjustifiable.” 50 You should document<br />
the domestic violence and establish that leaving was important for her and the<br />
child’s safety. Sheridan v Sheridan51 may be a helpful case. Although decided<br />
before the UCCJEA was passed, it held that there were exceptional<br />
circumstances, including domestic violence and economic necessity, warranting<br />
relocation of the mother with her child to Puerto Rico even though it was<br />
undisputed that the move would clearly deprive the father of “regular and<br />
meaningful visitation.” 52<br />
If the father files for custody in New York after she flees but within six<br />
months, the first issue is whether your client wants to respond only in New York<br />
or whether she also wants to file for temporary emergency jurisdiction in her<br />
new location and ask that New York decline to exercise its home state priority.<br />
In most cases, your client would like to litigate in the refuge state for reasons of<br />
safety, travel, and cost considerations, but arguing that New York decline<br />
jurisdiction over the final custody decision will probably be a very tough sell.<br />
Additionally, it may be in your client’s interest to litigate in New York where the<br />
law supports domestic violence victims and where she has an attorney.<br />
In either case, you should ask the New York court to allow your client to<br />
retain temporary custody and to relocate immediately to her new location. Your<br />
success will largely depend on whether the court finds that the allegations of<br />
domestic violence are credible and that it is in the child’s best interest to remain<br />
where he or she is currently living. New York courts have awarded custody to<br />
domestic violence victims in such cases, even if they have relocated without a<br />
court order. 53<br />
Although you may have an uphill battle, you can ask New York to decline<br />
to exercise its home state jurisdiction; the court can do so under the inconvenient<br />
forum provision of the UCCJEA. 54 The UCCJEA specifically delineates<br />
domestic violence as a factor for the court to consider in deciding whether or<br />
not to exercise jurisdiction. 55 Although decided under the UCCJA, the court in<br />
Swain v Vogt56 declined to exercise jurisdiction when the mother was forced to<br />
flee New York due to violence. The <strong>Court</strong> held that “[i]t is axiomatic that<br />
Family <strong>Court</strong>, having not yet made a decree concerning custody in this case,<br />
may decline to exercise its jurisdiction if it finds that it is an inconvenient forum<br />
to make a custody determination.” 57
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