Thursday, September 17, 2009

Interstate Custody Issues

Interstate custody presents a complexity of law and issues that overlays the usual complexity of a custody case Rochester Family Lawyer's Custody, UCCEJA and Jurisdictional Issues does a remarkable job of condensing the law in one post.  The following applies as much to Indiana as to Indiana (one of the good things about uniform laws):

New York, as well as many other states, has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCEJA”). UCCEJA aims to discourage interstate child abductions and to prevent “forum shopping” by parents trying to strategically remove the child to a state to avoid another state’s jurisdiction. The statute explicitly sets forth the circumstances in which New York courts have jurisdiction, particularly when there is a question which state has the right to exercise jurisdiction because one parent and/or the child no longer resides in New York. Although it is usually invoked in petitions seeking custody or visitation, or modification and/or enforcement of custody or visitation orders, it also applies to guardianship proceedings, divorce, paternity, child abuse or neglect, termination of parental rights, and domestic violence cases. Since jurisdiction is usually not in issue when the child lives in New York or has moved from the state within six months of filing the petition, the UCCJEA helps to resolve jurisdictional issues in other circumstances where the child has moved to another state or his or her physical presence in the state. These include cases where the noncustodial parent lives in New York but the child does not; where the child moved from the state more than six months prior to the filing of the petition (but without the noncustodial parent’s consent or to somewhere unknown to that parent); or where the child is in New York and there are concerns of abuse and/or neglect. These are all scenarios that warrant the application of the UCCJEA.

The UCCJEA sets forth alternative rounds of asserting jurisdiction, which are: 1) where it is in the best interests of the child based on the “significant connections” to the state and there is “substantial evidence” within the court’s jurisdiction concerning the child’s current or future care; 2) where there is an emergency situation ; 3) where no other state has jurisdiction or 4) another state has refused jurisdiction
For Indiana's version of this law, go here.  I have written about this topic in From another state?  Got a custody problem?.

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