WHEN THERE IS NO HOME STATE, WHO HAS CHILD CUSTODY JURISDICTION?
By Jeremy D. Morley
Child custody jurisdiction in New York hinges primarily on identifying the child’s “home state.” But what if there isn’t one? For example, what if the child has been living overseas with a grandparent? That was the issue recently facing Judge Schechter in Family Court, New York County in Grace G. v. Beeno G., 2006 NY Slip Op 51443. The court’s step-by-step analysis provides a useful illustration of how to apply the Uniform Child Custody Jurisdiction and Enforcement Act in a complex case.
The child’s parents had moved from Trinidad to the United States — the mother to New York; the father to Florida — and had left daughter Shedine in Trinidad with the father’s mother. The biological mother then procured a divorce in New York, but the decree did not mention Shedine. Some years later, while the paternal grandmother and Shedine were changing planes in Florida en route to attending the father’s remarriage in Florida, the mother seized the child, took her to New York and promptly filed for custody in that state. A few weeks later the father filed for custody in Florida. Did New York have jurisdiction?
Alternative Bases of Child Custody Jurisdiction
Domestic Relations Law (DRL) § 76(1) contains four alternative grounds for child custody jurisdiction. They are “the exclusive jurisdictional basis for making a child custody determination by a court of this state.” DRL § 76(2).
Subparagraph (a) of § 76(1) provides that the principal basis of child custody jurisdiction is that New York is the “home state,” i.e., “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” DRL § 75-a (7). Under this rule, neither New York nor Florida was the home state, since Shedine had been residing for years in Trinidad. So, what about Trinidad?
The fact that Trinidad is a foreign country was irrelevant, since DRL § 75-d (1) provides that, “A court of this state shall treat a foreign country as if it were a state of the United States” for UCCJEA purposes. But residency does not count for “home state” purposes unless it is in “the state in which a child lived with a parent or a person acting as a parent.” DRL § 75-a (7). Was the grandmother “a person acting as a parent”? DRL § 75-a (13) creates a two-pronged test. The first prong asks whether the person in question “had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding.” Shedine’s grandmother satisfied this portion of the test. But the second prong required that the grandmother have “been awarded legal custody by a court or claims a right to legal custody.” DRL § 75-a (13). She had received no custody award and had apparently made no claim to custody. Accordingly, Trinidad was not Shedine’s “home state” and Judge Schechter had to turn to the second potential basis for jurisdiction, found in subparagraph (b) of § 76(1).
Subparagraph (b) provides that, if there is no home state, a New York court may exercise jurisdiction if the child and at least one parent have a significant connection with New York other than mere physical presence and there is also substantial evidence concerning the child’s care, protection, training, and personal relationships in the state DRL § 76(1)(b). The subparagraph requires the significant connection of both the child and a parent, plus the existence of substantial in-state evidence.
Since the mother had lived in New York for several years, she had a “significant connection” to New York. But Shedine had been in New York for just one day when the case was initiated, had never been in New York for an extended period of time, and had no contacts in the state beyond a few visits. The “significant connections” standard is more stringent than a “minimum contacts” test (Vernon v. Vernon, 100 NY2d 960, 972 (2003)). Therefore, the court found that Shedine had no “significant connection” to New York.
Moreover, there was no substantial evidence in New York about Shedine’s care, protection, training, and personal relationships. “Substantial evidence” requires an “optimum access to relevant evidence” (Vanneck v. Vanneck, 49 N.Y.2d 602, 610 (1980)), but Shedine had never attended school in New York, there were no relevant records in New York predating the filing of the petition and the divorce decree had not mentioned her.
Accordingly, Judge Schechter found that subparagraph (b) did not authorize New York to take jurisdiction.
Subparagraph (c) provides that, if there is neither a home state nor a “significant connection” state, New York may not take jurisdiction unless “all courts having jurisdiction under paragraph (a) or (b) of this subdivision have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum.” The court found that this provision did not apply with respect to Shedine’s case since no such court existed. Since Florida lacked even Shedine’s physical presence, its connections were even slighter than New York’s. Finally, subparagraph (d) allows a New York court to take jurisdiction if “no court of any other state would have jurisdiction under the criteria specified in paragraph (a), (b) or (c) of this subdivision.”
The judge found that subparagraph (d) operated by default to authorize jurisdiction in New York over the child’s custody determination.
Priority of the Two Cases
What about the case pending in Florida? Judge Schechter held that the state in which the first proceeding was filed should normally assume jurisdiction, since DRL § 76-e indicates that a court may not exercise jurisdiction if “at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this article, unless the proceeding has been terminated or is stayed by the court of the other state.” New York’s case had priority since it had been commenced several weeks before Florida’s. Florida could exercise jurisdiction only if New York terminated or stayed its proceedings.
Discretion to Decline Jurisdiction
Did this mean that New York should take jurisdiction and thereby reward the mother’s misconduct? Not necessarily. Judge Schechter identified two separate and distinct provisions of the UCCJEA that afforded a basis for New York to decline jurisdiction.
The first such ground is unjustifiable conduct. DRL § 76-g (1) requires a court to decline to exercise its jurisdiction if “a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct” that forms the basis of the claimed jurisdiction. This provision is designed to deter the removal of a child across state lines to secure jurisdiction and is generally applied when a child has been removed contrary to an existing custody order. But, in the instant case, there was no custody order from any jurisdiction, and the mother’s removal of the child to New York was not itself illegal. However, Judge Schechter determined that the absence of a custody order was substantially the result of the mother’s wrongful failure to disclose the existence of Shedine in the prior New York divorce.
The judge relied on the Comment to UCCJEA § 208 (the equivalent to New York’s Domestic Relations Law § 76-g), to establish that the section is not limited to illegal conduct, and should apply to “cases where parents, or their surrogates, act in a reprehensible manner, such as removing, secreting, retaining, or restraining the child.” Unif Child Custody Jurisdiction & Enforcement Act § 208, 9 ULA cmt at 684-85 (1999).
While the mother had not “abducted” the child, her seizure of the child was “irresponsible and reprehensible,” said the court, and “her withholding of important information from both the Supreme Court in the divorce proceeding and from this court in the instant case shows a settled purpose to manipulate the courts to her own ends.” The court determined that, “These bad faith actions, totally at odds with the purposes of the UCCJEA, constitute unjustifiable conduct requiring this court to decline jurisdiction.”
A second and alternate basis for New York to avoid jurisdiction was found in DRL § 76-f, which allows a court to decline to exercise jurisdiction “if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.” The statute lists various factors that a court may consider in this regard. The listed factors include whether domestic violence has occurred, the time the child has resided outside the state, the distance between the respective courts, the relative financial circumstances of the parties, any agreement of the parties about jurisdiction, the nature and location of the evidence, the ability of the court of each state to decide the issue expeditiously and the familiarity of the court of each state with the facts and issues in the pending litigation. Judge Schechter found that the enumerated factors favored neither New York nor Florida.
However, the list is not exhaustive. The statute states that the court “shall consider all relevant factors” in its analysis. The judge found that the mother’s conduct was relevant to a determination whether New York was the most convenient forum. Any convenience there was in having New York as a forum was a consequence of Shedine’s presence in New York, which resulted from the mother having seized and removed her. A basic purpose of the UCCJEA is to deter parents from spiriting children to distant states to generate custody jurisdiction and the court should not “reward the mother’s highhanded conduct in intercepting Shedine’s trip to her father’s wedding.” Accordingly the court dismissed the case on the ground that Florida, which was willing to assume jurisdiction, was the more appropriate forum in which to litigate the child’s custody.
When the UCCJEA is applied carefully, it generally works well, even in complex interstate and international situations. The trick is to take the issues slowly, in a step-by-step way, to come to the proper conclusion.