Lawyers Manual - Unified Court System

Moving On: UCCJEA, The Hague Convention, and Relocation 115
No Court Order
When no prior court order exists, the non-custodial parent has parental rights
to the child, and your client has fled to New York, she has several different options.
Should she file a custody proceeding?
The first strategic issue facing your client is whether to file a custody case in
New York. In some instances, initiating a proceeding may not be in your client’s
best interest. While a domestic violence victim may be able to keep her
residence confidential, the court papers will necessarily reveal the state in which
your client is located. Also, in order for any court case to proceed, your client
will be required to serve the other party, which can be difficult in another state.
(You can contact the sheriff or marshal in the county where the other parent
lives.) Sometimes a parent who in the past has expressed no interest in the
children, in the face of being served with court papers, may show a new or
renewed interest in the children. He may file for custody in the state your client
fled, forcing her to return to litigate the case there. Therefore, it may be a better
option to wait to file a petition for the requisite six months and allow New York
to become the home state. While filing for an emergency temporary order of
custody may give your client the security of having a custody order in hand,
even if only temporarily, it is unlikely that the final custody order will be
decided in New York and you must therefore be prepared to have the case
litigated in her original jurisdiction.
If you do decide to go to court immediately for a temporary order, you will
need to prove the existence of the domestic violence and show its harmful effect
on the children. From the outset you should assess the seriousness of the abuse,
its duration, and the evidence of the abuse you can introduce in court. Discuss
with your client whether she already has any police reports, medical records,
photos, witnesses, or orders of protection. She may want to file a police report
in New York as soon as possible. You should obtain certified copies of any
orders from the other state.
If the parent who was left behind files for custody in the home state, you
should try to find an attorney in that state to represent your client. Once the
proceeding is filed in that state your client should file a custody proceeding in
New York. You should suggest that the other attorney argue that the court
decline jurisdiction on the grounds that the forum is inconvenient. If there are
two proceedings pending, the courts should communicate and decide which
court should hear the case, but again, it is likely that the ultimate custody
decision will be made by the home state.