New York Family Law Blog
The parties were married in California thereafter they resided together in Orange County, New York. A New York Family Lawyer said the respondent wife moved out of the marital residence. She was approximately seven months pregnant at the time. She filed a family offense petition in Orange County Family Court and was granted an ex parte Temporary Order of Protection against her petitioner husband. Through her attorney, she notified the Family Court that she was withdrawing the family offense petition which had not as yet been served upon her husband, and that she was leaving for the holidays with her family. That same day, she left New York and returned to her parents’ home in Alexandria Minnesota. She wrote to her husband she would be back with her parents. She did not return home to the marital residence after the holidays as she had previously indicated. The husband thereupon commenced an action for divorce by filing a Summons with Notice.
The infant child was born in Alexandria, Minnesota. A New York Child Custody Lawyer said the instant Writ of Habeas Corpus was issued by the court and was made returnable. The writ was adjourned on consent to February 17th, on which date both the counsel and the complainant husband appeared and oral argument was held. The court waived the appearance of the infant who was only several days old when the writ was issued, and had developed some health issues. In the meanwhile, the respondent wife filed a petition in District Court of Douglas County, Minnesota for legal and physical child custody, child support, and to schedule parenting time for the husband.
The issue of whether a petition for a writ of Habeas Corpus confers to the subject matter jurisdiction upon the Court to adjudicate the parties’ child custody dispute when the child is outside the State of New York when the petition was filed. A Bronx Family Lawyer said it is also an issue whether New York or Minnesota is the home state assuming the court does have subject matter jurisdiction.
As to the first issue, the respondent wife challenges the appropriateness of habeas corpus relying on the explicit language in Domestic Relations Law (DRL) authorizing a parent to petition for a Writ of Habeas Corpus where the minor child is residing within the state. A Bronx Custody Lawyer said there is a paucity of authority as to whether the child in question must be located in the state when the application for a Writ of Habeas Corpus is made. The Practice Commentary to Domestic Relations Law notes that although the statute explicitly requires the child who is the subject of the proceeding be residing in the state, the modern view is the presence of the child in the said state is not a prerequisite, at least when the disputing adults are subject to the jurisdiction of the court.
Here, the court finds subject matter jurisdiction over the parties predicated upon the prior filing of the Summons with Notice by the husband, in which the jurisdictional requisites, as set forth in DRL were presumably satisfied. Had the husband proceeded by Order to Show Cause instead of invoking the Writ of Habeas Corpus, the court no doubt would have subject matter jurisdiction over the child custody issue once the child was born. Thus, the court views the respondent wife’s challenge to the remedy of habeas corpus used by the husband in bringing the issue of child custody to the immediate attention of the court to be a matter of form over substance. Accordingly, the court determines that subject matter jurisdiction has been properly obtained.
As to the second issue of whether New York or Minnesota is the home state of the very young infant, the determination of a child’s home state is of critical importance. The resolution of the issue of home state must be made by the court, as contemplated by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). There must be an appropriate finding as to which state is the appropriate jurisdiction for ruling upon initial applications (and modifications) of child custody and visitation of a child.
Home state means the state in which the 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. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.
In most cases, a less than six month old child achieves home state status upon birth. However there remains the issue when the child and parent relocate during the initial six months (not present here), or the child is born in a state where neither parent resides, as the petitioner husband contends has occurred here. This issue has yet to be addressed in New York.
The respondent wife posits that Minnesota is the home state because the child, who is less than six months old, lived in Minnesota at the moment of birth, continued to live in Minnesota as of the date of the issuance of the writ, and remains a resident of Minnesota, predicated upon her own conduct since arriving there. It should be noted that Alexandria, Minnesota is the respondent wife’s hometown. Notwithstanding her early December letter indicating a return date to New York of January 1st or 2nd, she denies she was merely visiting Minnesota and had the baby during a visit. Rather, she states in her affidavit she returned to Minnesota to have the support of her family and friends in her hometown.
In further support of her claim, the respondent wife states she has taken steps to legally change her address, applied for a Minnesota driver’s license, applied for a Minnesota teaching license, found an obstetrician and a pediatrician for the child, and is looking for employment. She and the infant currently reside with her parents, where she has been living since arriving in Minnesota in early December.
The court is mindful that the petitioner husband could not bring on his application until the child was born, and that prior to that date, he could not compel his respondent wife to return to the marital residence. The court is also cognizant that litigating the issue of child custody and visitation in Minnesota will be expensive and inconvenient to the petitioner husband. Nevertheless, the statutory, interstate compact that has been adopted by New York and Minnesota (and every other state in this nation) is intended to provide consistency and stability arising under these unfortunate circumstances. It is an axiom of statutory construction that the legislative intent is to be ascertained from the language used, and that where the words of a statute are clear and unambiguous, they should be construed literally. The court cannot overlook the clear and unambiguous language in DRL that home state, when applied to a child less than six months old, is defined as the state in which the child lived from birth with any of the persons mentioned. The court finds, based upon the totality of the circumstances, the infant’s home state is Minnesota.
Notwithstanding where the equities in this case may lie, which the court is constrained to disregard, the petitioner husband’s application for a Writ of Habeas Corpus, requiring the return of the parties’ infant child from the State of Minnesota to the State of New York, is hereby denied, and the petition is dismissed.
Most often, mothers are awarded child custody. However, not all people who were granted such responsibility are worthy and deserving. If you want to fight for your children’s custody, set up a meeting with the New York City Child Custody Attorney and a New York Visitation Lawyer from Stephen Bilkis and Associates.