DRL Section 76 deals with the New York version of the UCCJEA, or Uniform Child Custody Jurisdiction Enforcement Act which is designed to cover situations where the parents of a child live in different states and are in Family Court in their respective states, or, if married, have filed for divorce.  It is basically ruled by a determination of the home state of the child, or where the child resided for the last six-month period.

The Courts really frown upon forum shopping, so the parties are now generally bound by the following parameters of the statute. Previous to DRL Section 76 there was much confusion in New York divorce and Family Court cases.  Under this law, New York court has absolute  jurisdiction to modify a child custody judgment or order

Also, New York will retain the power to adjudicate custody to the  exclusion of a foreign state so long as the child and one parent have significant material connections and nexus to New York.  However, if the Court determines that the child no longer resides in New York and neither of his parents reside in New York then exclusive jurisdiction over the matter will not be maintained.

This rule becomes particularly important when parent kidnapping is involved or where one of the parties abscond and remove the child from New York.  Under these circumstances,  the New York court will deem the state where the child has been wrongfully removed as the true home state.   This makes perfect sense since it discourages parties from forum shopping. So , in New York, what happens in this instance is that the time the child remains in a foreign state is tolled for purposes of the statute and is viewed as a mere temporary absence.  

If a child has been wrongfully removed from New York pursuant to DRL 75–a(7), generally speaking the Courts will order the child returned to New York but there are exceptions to this rule since there are competing rules of law governing the states at issue when there is a question as to which state will hear the case. 

The New York Court will not be deprived of jurisdiction in the midst of litigation on custody due to the fact that a parent has fled the state.  Arnold v. Harari, 4 A.D.3d at 646–647, 772 N.Y.S.2d at 729 (finding the UCCJEA applicable to situation where children were transported to and from Israel and where wife had commenced Israeli proceeding).

When there is a conflict between the States the Courts will generally hold a judicial conference to discuss the matter so as to determine which state will retain subject matter jurisdiction.

This rule of law becomes particularly important when foreign countries are involved.  Then the matter might end up in the Hague convention where a further determination may be made.   For instance, if a Father flees from a foreign country and takes up residence with the child in New York, even for a period in excess of six months, if the foreign country had previously given the Mother an Order of custody, that foreign Order will generally be deemed controlling.

That said, there are exceptions to this rule. For instances, a party can seek emergency jurisdiction based upon domestic  violence.   I will discuss this exception in my following articles.

I hope this has been helpful.

This is not legal advice, just information based upon my own opinion on th estate of the law. Retain a New York Divorce lawyer of your choice before taking legal action.

By: Lisa Beth Older 

Your Manhattan Divorce Lawyer

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