Lawyers Manual - Unified Court System

114 Liberty Aldrich and Lauren Shapiro
clients who want to leave New York. In particular, you need to know whether
the parties are married or whether paternity has been established to help decide
whether or not to file a custody case in New York immediately or whether you
should wait.
An Existing Custody Order From Another State
The first issue is whether a custody order is already in place from the
original state, the terms of such order, and whether the order was on consent,
after trial, or on default. A New York court may not modify an existing out-ofstate
custody order unless the court that rendered the decree declines to assume
jurisdiction and New York has a significant connection to the case. 68 However,
even if New York does not have jurisdiction (or while a determination is being
made regarding jurisdiction) and there is a custody or visitation order from
another state, New York can assert temporary emergency jurisdiction if
necessary to protect the parent. 69 In Hector G. v Josefina P., 70 the Court
“assume[d] temporary emergency in order to investigate further the domestic
violence allegations.” After asserting temporary jurisdiction, the court found that
it had jurisdiction to modify the final custody order because the original court
declined jurisdiction and the children and the mother had “significant
connections” with New York. Specifically, the court noted that the children had
lived in New York for a year, went to school here, and had a pediatrician here.
In addition, a report had already been completed by the Administration for
Children’s Service, the local child protective agency. The court decided to
exercise jurisdiction since New York was the more convenient forum.
Any court may punish a party who willfully violates an existing court order,
and most courts will punish a parent who removes a child from the jurisdiction
when the parent was specifically prohibited from doing so. Courts can also hold
a party in contempt for failing to respond to other orders of the court, such as a
subpoena, an order to appear in another state’s court, or an order to produce the
child. If the court finds after a hearing that your client willfully violated the
order, she may be held in contempt of court. In more extreme situations, your
client may face criminal sanctions for custodial interference. You must argue
that she fled for her safety and not to relitigate an unfavorable custody or
visitation decision. Fleeing an incident or pattern of domestic violence is an
affirmative defense to international kidnapping; 71 you should argue that while
this defense was enacted for international crimes, it is federal law and the
rationale behind the defense should be applied to interstate crimes as well.