Lawyers Manual - Unified Court System
Lawyers Manual - Unified Court System Lawyers Manual - Unified Court System
116 Liberty Aldrich and Lauren Shapiro At the hearing, you should ask the court to appoint a law guardian and to order an investigation. Consider using an expert witness to establish imminent risk and asking the court to appoint a forensic expert. You can also ask the court of the state in which the custodial parent resides to prepare a home study for the hearing. If a case is pending in the home state, the batterer may seek a dismissal or stay of the action in New York. In response you can argue that the home state should decline jurisdiction because defending the action in that state would put the parent and child at risk and that New York is the more convenient forum. Conclusion Interstate cases can take a long time to make their way through the courts, and, in the meantime, hinder your client’s ability to protect herself and her children from continued abuse. Although the UCCJEA and other statutes provide advocates with some tools to argue on behalf of domestic violence victims, overcoming the presumption in favor of home state jurisdiction can be difficult. If an interstate case is commenced, the jurisdictional argument can end up being the key to winning. The choice between litigating long-distance or returning to an unsafe jurisdiction can overwhelm even the most persistent parent, but continued pressure and the threat of a court order can succeed in returning improperly removed children. Similarly, careful advocacy and safety planning can help support your clients’ efforts to find refuge in a new jurisdiction.
Notes Moving On: UCCJEA, The Hague Convention, and Relocation 117 1. New York’s law is codified in the Domestic Relations Law, art 5-A, § 75 et seq. (amended 2004). 2. The UCCJEA has been interpreted to apply to cases in which the other jurisdiction is a different country, not just another state; see Hector v Josefina P., 2 Misc 3d 801 (Sup Ct, Bronx County, 2003). 3. See http://www.nccus1.org for updates. 4. Domestic Relations Law § 75. 5. http://www.courts.state.ny.us/forms/family_court. 6. The National Center on Full Faith and Credit of the Pennsylvania Coalition Against Domestic Violence can be reached at (800) 256-5883. 7. Domestic Relations Law § 67(1). 8. This is the mirror to Domestic Relations Law § 76-f, which gives New York courts a basis to waive home state jurisdiction where the court determines that the home state is inappropriate. 9. Domestic Relations Law §§ 76-a and 76-b. 10. 100 NY2d 960 (2003). 11. Domestic Relations Law § 76-c(1). 12. Domestic Relations Law § 76-c(2). See e.g. Hector G. v Josefina P., 2 Misc 3d 801 (Sup Ct, Bronx County, 2003). 13. Domestic Relations Law § 76-c(3). 14. Domestic Relations Law § 76-f. 15. Domestic Relations Law § 76-f(3); although not decided by a New York court, Stoneman v Drollinger, 314 Mont 139 (2003), offers a clear explanation of the UCCJEA’s application in inconvenient forum cases involving domestic violence. 16. Domestic Relations Law § 75-i. 17. Domestic Relations Law § 76-b. 18. Domestic Relations Law § 76-g. 19. Domestic Relations Law § 76-g(4).
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Notes<br />
Moving On: UCCJEA, The Hague Convention, and Relocation 117<br />
1. New York’s law is codified in the Domestic Relations Law, art 5-A,<br />
§ 75 et seq. (amended 2004).<br />
2. The UCCJEA has been interpreted to apply to cases in which the other<br />
jurisdiction is a different country, not just another state; see Hector v Josefina<br />
P., 2 Misc 3d 801 (Sup Ct, Bronx County, 2003).<br />
3. See http://www.nccus1.org for updates.<br />
4. Domestic Relations Law § 75.<br />
5. http://www.courts.state.ny.us/forms/family_court.<br />
6. The National Center on Full Faith and Credit of the Pennsylvania Coalition<br />
Against Domestic Violence can be reached at (800) 256-5883.<br />
7. Domestic Relations Law § 67(1).<br />
8. This is the mirror to Domestic Relations Law § 76-f, which gives New York<br />
courts a basis to waive home state jurisdiction where the court determines<br />
that the home state is inappropriate.<br />
9. Domestic Relations Law §§ 76-a and 76-b.<br />
10. 100 NY2d 960 (2003).<br />
11. Domestic Relations Law § 76-c(1).<br />
12. Domestic Relations Law § 76-c(2). See e.g. Hector G. v Josefina P.,<br />
2 Misc 3d 801 (Sup Ct, Bronx County, 2003).<br />
13. Domestic Relations Law § 76-c(3).<br />
14. Domestic Relations Law § 76-f.<br />
15. Domestic Relations Law § 76-f(3); although not decided by a New York<br />
court, Stoneman v Drollinger, 314 Mont 139 (2003), offers a clear<br />
explanation of the UCCJEA’s application in inconvenient forum cases<br />
involving domestic violence.<br />
16. Domestic Relations Law § 75-i.<br />
17. Domestic Relations Law § 76-b.<br />
18. Domestic Relations Law § 76-g.<br />
19. Domestic Relations Law § 76-g(4).
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