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Child CustodyMother’s Attempt to Flee New York to Deprive Court of Custody Jurisdiction Fails

January 9, 2008

I am continuing to explore the recent decisions of the Appellate Division.

In re Michael McC., v Manuela A, a mother took her child and fled from New York and went to Italy during a pending child custody case in a deliberate attempt to deprive New York of jurisdiction to hear the case. After conducting an exhaustive study of the Uniform Child Custody Jurisdiction Enforcement Act ("UCCJEA”), the Appellate Division found that New York would retain jurisdiction to decide custody matter.

UCCJEA and governs virtually every custody proceeding. It is designed to eliminate jurisdictional competition between courts in matters of child custody and the substantial confusion that arose under its predecessor, the UCCJA. Thus, under New York’s UCCJEA, a New York court has jurisdiction to modify a child custody determination made by a court of another state if this state is the "home state" of the child. Moreover, the New York court continues to maintain exclusive jurisdiction until a determination is made that neither the child, nor the child and one parent have a significant connection with this state, or where the court determines that neither the child, and neither of the child’s parents reside in the state.

Further, a state is considered to be the child’s "home state" pursuant to DRL 75-a(7), where the child has been wrongfully removed to another jurisdiction. In such instances, the child’s stay outside of New York is considered as nothing more than a period of temporary absence and as part of the six-month period. . . .The fact that a custodial parent flees in the middle of a custody litigation commenced properly in New York simply does not deprive the New York courts of subject matter jurisdiction to issue an order concerning custody, visitation, and related issues.

Here, there is uncontroverted evidence that the parties, mother, father and child were living in New York since January 2005, a period of 19 months prior to the mother’s petition for a modification of the initial custody order, and 22 months prior to the father’s cross petition for sole custody. Thus, the record establishes that New York has jurisdiction in this custody modification proceeding. Moreover, the mother’s flight to Italy cannot deprive New York of continuing jurisdiction in this proceeding so long as the father resides here.

Though the decision was well reasoned and supported by law, I cannot help but wonder if the Court was, at least, in part, motivated by its dis-pleasure over the mother who, facing a potential adverse decision in a New York court, “forum shopped” and fled to a jurisdiction where she thought she would obtain a more favorable result.

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