Lawyers Manual - Unified Court System

122 Mary Rothwell Davis
November 2002 and charged with threatening Ms. P., his ex-wife and the mother
of their twin sons. Because Mr. G. filed, in Bronx Family Court, a writ of habeas
corpus claiming that Ms. P. had interfered with his custodial rights pursuant to
default order of a Dominican court, both the criminal and family law cases were
transferred to the IDV Court to be heard by a single judge. Very shortly
thereafter, Ms. P. filed a petition for custody and a family offense petition, both
alleging that Mr. G. had subjected her to severe domestic violence.
For purposes of analysis, the Dominican Republic was determined to be the
equivalent of any other state. Because the Dominican Republic is not a signatory
to the Hague Convention on the Civil Aspects of International Child Abduction, 3
that law did not come into play. While the drafters spoke of the UCCJEA as
addressing custody disputes “across state lines,” in fact the Act is expressly made
applicable to foreign disputes as well, so long as the determination was made “in
substantial conformity with the jurisdictional standards of this article.” 4 Thus the
principles of the UCCJEA properly governed determination of this dispute —
even though the Dominican Republic was not similarly bound by a reciprocal act. 5
Defining the Home State
Because the overriding purpose of the UCCJEA is to eliminate jurisdictional
competition between courts in matters of child custody, jurisdictional priority is
always conferred to a child’s “home state,” and many of the Act’s provisions are
intended to assist a court in determining which jurisdiction is the “home state.” 6
A jurisdiction does not become a child’s “home state” unless the child has lived
in that state with a parent or “person acting as a parent” for at least six
consecutive months prior to commencement of the action. 7
In the Hector G. case, New York was not the “home state.” A final order of
custody from a court in the Dominican Republic had been affirmed on appeal
just weeks before Mr. G.’s arrest, and Ms. P. and the children had only just
arrived in New York State. The IDV court had to determine whether it could or
should assume jurisdiction of the matter at all or must simply refer the parties
back to the Dominican Republic court.
Temporary Emergency Jurisdiction
Different standards govern cases in which there is no prior custody decree 8
and those in which a court of another jurisdiction has already assumed
jurisdiction of the custody matter. 9 A court has much more latitude in cases
involving initial child custody determinations, as there is no competing
jurisdictional claim. 10 As a general rule, once a court has made a valid child