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Whether New York possesses initial child custody jurisdiction, considering the children’s residency outside the state. Matter of E.P. v B.S. 2023 NY Slip Op 23318


The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a set of laws enacted in all 50 states of the United States, including New York, to provide a legal framework for determining which state has jurisdiction over child custody matters. The primary aim of the UCCJEA is to prevent jurisdictional conflicts and ensure that custody decisions are made in the best interests of the child.

In New York, the UCCJEA is codified under Domestic Relations Law (DRL) §§ 75-a to 77-b. These provisions outline the rules and procedures for determining jurisdiction in cases involving child custody, visitation, and relocation across state lines.

One of the key principles of the UCCJEA is the concept of “home state” jurisdiction. Under DRL § 75-a(7), the “home state” is defined as the state where the child has lived with a parent or guardian for at least six consecutive months prior to the commencement of a custody proceeding. This provision ensures that the state with the closest connection to the child is given priority in deciding custody matters.

In addition to the home state rule, the UCCJEA establishes criteria for determining jurisdiction when no home state exists or when multiple states could potentially assert jurisdiction. These criteria include significant connections between the child and the state, emergency jurisdiction in cases of imminent danger to the child, and declining jurisdiction when another state is more appropriate.

Background Facts
The case involves a prolonged custody dispute between petitioner/respondent E.P. (“the father”) and respondent/petitioner B.S. (“the mother”) concerning their children, C., A., and M. The children had been the subject of custody proceedings in New York since 2017, during which temporary orders were issued. However, none of the children had resided in New York for six months prior to the filing of the 2017 petitions. C. and A. had lived with their mother in Connecticut for three years, followed by relocation to New Jersey in 2019. M. also resided outside New York for several years. Despite this, the New York court issued custody orders in the 2017 proceedings. The previous petitions were ultimately dismissed in 2022. The father now challenges New York’s jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), asserting that New York lacks initial jurisdiction due to the children’s absence from the state for an extended period. The mother opposes, arguing that New York should maintain jurisdiction based on prior custody orders and the children’s connections to the state.

Whether New York possesses initial child custody jurisdiction under Domestic Relations Law § 76, considering the children’s residency outside the state for an extended period,

After a meticulous examination of the legal arguments and factual circumstances, the court determined that New York lacks initial child custody jurisdiction. The dismissal of the petitions ensued, emphasizing the absence of the children’s residency within New York during the critical six-month period preceding the commencement of the proceedings.

The court concluded that New York lacks initial child custody jurisdiction primarily because none of the children had resided in the state for the requisite six-month period before the commencement of the custody proceedings. Despite previous custody orders issued by a New York court in 2017, the children had been living outside the state since then. The mother’s argument that New York retained jurisdiction based on those prior orders was deemed flawed because it presupposed that the court had initial jurisdiction when issuing them. Since the children did not meet the residency requirement, New York did not have initial jurisdiction under the UCCJEA and Domestic Relations Law § 76. The court emphasized that subject matter jurisdiction, including initial custody jurisdiction, cannot be waived, estopped, or created through consent. Therefore, the court granted the father’s motion to dismiss the custody petitions for lack of subject matter jurisdiction.

In a case marked by jurisdictional complexities, the court’s decision underscores the paramount importance of adhering to statutory criteria in custody disputes. By dismissing the petitions, the court prioritized the children’s welfare and the efficient resolution of the litigation, while acknowledging the evolving nature of jurisdictional determinations under the UCCJEA. This case serves as a reminder of the nuanced legal considerations inherent in child custody matters, emphasizing the need for  experienced New York family law lawyers in child custody matters.

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