When obtaining a court order for child custody or visitation it is important to have the court include that the custodial parent is not to relocate out of the state or that they are to remain in a specified region.  This will limit the custodial parent’s ability to make unilateral decisions about where the child will live, even in sole custody cases.

          Last week I discussed jurisdictional issues that come up when a child and/or custodial parent relocates to another state and its impact on child custody and/or visitation with the noncustodial parent.  And although the UCCJEA and the PKPA certainly come into play in domestic relocation cases, the applicability of these federal statutes may be applicable in international custody and visitation cases as well.  The Hague Convention, however, will almost definitely apply in international cases but not domestic ones. This statute does not determine which state has jurisdiction, as do the other two federal statutes, but serves to have the child returned to the home country.

          The Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) is a multilateral treaty (ratified by the U.S. in 1988) that sets forth an expeditious method to return a child taken from one member nation to another (not all countries have adopted the Hague Convention). The Hague Convention was drafted to insure the prompt return of children who have been abducted from their country of “habitual residence” or wrongfully retained in a country other than their country of habitual residence.  The Hague Convention seeks “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their “habitual residence”, as well as to secure protection for the rights of access.”  The primary intention of the Hague Convention is to maintain the  status quo of a child custody arrangement that existed immediately before the alleged wrongful removal or retention. The Hague Convention, however, only applies to children under the age of 16.
         The Hague Convention provides that the removal or retention of a child is “wrongful” whenever:
                 a).   it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was “habitually resident” immediately before the removal or retention; and
                b). at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” These rights of custody may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the country of “habitual residence”.

          Whether there is a court order for child custody or a mere agreement between the parents, or persons legally responsible, the Hague Convention can be invoked where the rights to care for the child are concerned.  “Habitual residence”, although is not defined by the Hague Convention, is typically determined by the court (state court or District court in New York have jurisdiction) on a case by case basis.  Unlike the UCCJEA and the PKPA, “habitual residence” is not determined by the child residing in a particular state for a period of at least six months.  Thus, the “home state” provision in these statutes is not applicable here. “Habitual residence” is usually the place the child resided before the questionable removal period, unless the move was done on consent or with the intention of the new place being the permanent home. Further, the court must look at the shared intentions of the parties, the history of the children’s location and the settled nature of the family prior to the facts giving rise to the request for return to determine “habitual residence”. 

          Additionally, the child must have been wrongfully removed or retained to invoke the Hague Convention, and unlike the UCCJEA and PKPA, the best interests of the child standard does not come into play.  However, there are defenses to the law, where the  parent that wrongfully removed  the child can prove that:
 
               1) the removal or retention occurred more than one year prior to the commencement of child custody proceedings in the “new” country; or
              2) the other parent was not exercising any visitation with the child at the time of removal or retention or acquiesced in the removal or retention; or
              3) a return of the child to the country (not necessarily the parent) would subject the child to a grave risk of harm, either physical or psychological (domestic violence cases are not an automatic bar); or
             4) the “new” country’s courts finds that a child of significant age and maturity to have his or her views considered, does not wish to return; or
            5) a return would not be permitted pursuant to the “new” country’s fundamental principles as it relates to human rights.

         Given these exceptions, it is imperative to commence a Hague Convention proceeding as soon as possible, for the longer the child remains in the other country the better the argument the removing parent can make that the child should not be returned. Also, it is crucial to establish and collect proof that this is the child’s “habitual residence” and that it was the intention of both parents to make it permanent.  This may not be as easy where a parent who is a national of another country, comes here,  raises the child here and can make a showing that there was always an intention to have the child relocate to his or her home country.  It is not uncommon for that parent to covertly establish a residence in that other country for themselves and the child, unbeknownst to the left behind parent, while living here and maintaining a life here.  This can certainly make the left behind parent’s evidentiary case quite challenging, unless that parent is diligent in amassing as much proof as possible to prove otherwise.  Also, contacting the U.S. State Department on Children’s Issues, the federal and state prosecutors, as well as other agencies should be put on notice as soon as the removal or retention occurs.

          Although there is no way of knowing for certain if a parent plans on absconding with their child at any point, it is always wise to take every possible precautionary measure to prevent such an act.  Having open and constant contact with the other country’s officials, hiring an attorney both abroad and here and being diligent all help to facilitate a safe and prompt return.

          If you are the noncustodial parent living in New York and the child lives in another state if it crucial that you “register” any child custody or visitation orders in the state that your child lives in.  This will put that state on notice of the parameters of the order in the event you must seek enforcement or modification.

           Oftentimes I am asked about jurisdiction when either parent  and/or their child relocates to out of state and the other wishes to petition the court for child custody or visitation, a modification or change in custody or enforcement of a custody order.  Although there are many instances where the noncustodial parent seeks court intervention because of the fact that the custodial relocated without permission, there are in fact times where consent was given initially but then something happened to spark a modification or enforcement in the current custody order. 

           New York, as well as many other states) has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCEJA”) in 1999, which became effective in 2002.  This statute 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 of jurisdiction because one parent and/or the child no longer resides in New York.  Although it is usually invoked in petitions for custody or visitation, modifications and enforcements of custody or visitation orders, it also applies to guardianship, 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 iron out jurisdictional issues in other circumstances where the child’s residence is in question based on a move from the 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 or neglect .  These are all scenarios that warrant the application of the UCCJEA.

          The UCCJEA sets forth alternative methods 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.  Let’s take a look at each of these:

           Scenario 1:  This section only applies to cases where there is no home state and there has not been a home state for the past six months.  This limitation is imposed by the federal statute, the Parental Kidnapping Prevention Act which trumps the UCCJEA because of the constitutional supremacy clause (Article VI, Clause 2).  This act serves to provide more uniformity amongst states, resolve conflicts between various states that may have an interest and to address the inconsistency caused by the application of the prior act, the Uniform Child Custody Jurisdiction Act (“UCCJA”), which was the basis for states applying their own version resulting in inconsistent orders.  Its objective is to avoid forum shopping, while encouraging the preference for the issuing state to maintain jurisdiction so long as one of the parents or the child remains a resident of the state.  Based on this, as well the two part analysis required to meet the criteria, there are rare cases where this particular section applies.  For example, showing that there are “significant contacts with the state” may be attainable, but proving that there is “substantial evidence” concerning the child’s current or future care is much more challenging.

         Scenario 2:    This section applies mainly in child abuse or neglect cases or where the child was abandoned by the parent or legal guardian.  However, although the act serves to limit jurisdiction to situations where some immediate attention should be given, the statute is strictly construed.  In other words, a mere allegation of abuse or neglect is not enough, the courts must be convinced (by the child protective services) that abuse or neglect actually exist, placing the child’s physical and/or emotional well-being into question.   And even still, the courts may assert only limited or temporary jurisdiction, deferring the case to the home state of the child for further proceedings.  Furthermore, the child must physically be present in the state, and cannot be removed from the state for any reason under this provision.

          Scenario 3:  This section typically applies in cases where the child has not had a home state anywhere during the previous six months, (no significant connections or emergency situation exists).  This is really a safety measure, an effort to avoid the case going unheard by any court.  Cases like this arise when the child moved from NY, then to another state for a short period (less than six months), then back to New York less than six months before the filing of the petition.

         Scenario 4:  This section applies to cases where another state, presumed to have been the child’s home state, has denied jurisdiction based on its own provisions.  Typically states will deny jurisdiction for lack of significant ties, there is a case already pending in another state, there is a more convenient forum or merely for parties’ failure to ascertain legitimate residence (as is the case when parents take the child from another state and hide him or her from the noncustodial parent long enough to establish jurisdiction). 

         When it comes to modifying a child custody order in New York that was issued by another state, New York will not exercise jurisdiction unless the state that entered it no longer has jurisdiction.  So even if it is the non-custodial parent that remains in the issuing state, while the child and the custodial parent relocated to New York, that state still has jurisdiction unless it declines jurisdiction.  Conversely, New York will enforce a custody order if the child and one parent lives in the state if the order is registered in New York.

           Feel free to contact my office to discuss your family law issues.

          The outcome of a family law case and a criminal case arising out of the same facts and circumstances may directly, or indirectly, affect each other.  A Family Court judge will want to know the District Attorney’s position on a companion criminal case, to help make a determination regarding issues ranging from child visitation to abuse/neglect.  And although the District Attorney’s office may not have such an interest, it is advisable to keep your attorney (as well as the prosecuting attorneys) aware of what is going on in the other case.  Additionally, it is ideal to have the same attorney representing you on both cases if possible in an effort to consider all possible resolutions.

          There are areas of law that are esoteric in that they have very particularized principles, rules and laws that apply to only to that specialty.  It is often said that the area of family law encompasses a myriad of disciplines and therefore requires, at the very least, a basic understanding of many different principles in several areas of law.  One of those disciplines is criminal law, which certainly overlaps, if not collides in many instances, with family law.  Criminal law is one of those practices that require some understanding of its ramifications on the highly sensitive and very volatile area of family law.  I would like to address how the penal law statute, and the criminal procedure laws, apply in Family Court (and in Supreme Court in divorces) and thus impacts the overall outcomes.

          First, family offense proceedings, cases where the party is seeking an order of protection, is certainly one area where the criminal component comes into play. A party related by blood, marriage or consanguinity can get a civil order of protection in Family Court, and in Supreme Court if the parties are spouses in the middle of a divorce.  The order proscribes one from coming within a specified distance of another (including children) and/or from harassing, assauting, menacing, etc. that other party.  In addition, those circumstances, where the accused has caused some physical injury or serious physical injury, may also lead to an arrest of that party and is in fact very likely.  In the event there is an arrest, even though the Criminal Court may issue an order of protection, the Family Court may also issue an order based on the same set of circumstances (although the duration of the respective orders differ).  Although all Family Court cases do not warrant a companion criminal case, the court can certainly direct a litigant to the District Attorney’s office, the police or civilian agency if a criminal investigation is justified.  Conversely, however, a similar case that ends up in an arrest will not necessarily be directed to Family Court for a “civil” order of protection but the victim may certainly go to Family Court, particularly where there are children involved.

          Next, child abuse or neglect cases often have a criminal component, involving one or both of the parents or “persons legally responsible”.  Where a parent causes physical injury, serious physical injury or the threat of either, he or she subjects him or herself to possibility of a criminal charge of assault (physical or sexual), endangering the welfare of a minor or other related criminal charge.  In these cases, the police, as a “mandated reporter” must refer the case to the child protective agency.  If, however, the case gets to the agency first, the agency may refer the case to the District Attorney’s office for criminal investigation and/or prosecution.  Depending on the nature of the facts and circumstances, the case may definitely have both a Family Court and Criminal Court component comcomitantly.  The outcomes of both differ significantly, a criminal case subjects one to incarceration, probation, fines, etc, while a abuse or neglect case in Family Court may result in supervision by the agency, the child being placed in foster care and/or termination of parental rights (in addition to a whole host of services being provided to the family to ameliorate the initial problems).

          In child support cases, there is also the possibility of the application of the criminal statute.  Although there is a penal law section that is applicable to cases for non-payment of child support, these cases are rarely prosecuted.  Nonetheless, there are instances where incarceration may be imposed for a non-custodial parent who has been found to be “willful” in not making child support payments.  The penal law makes it a misdeamor or felony crime for failure to pay child support depending on the amount owed.  Although it is rare that parties are prosecuted on the state level for not paying child support, the law  remain on the book.  On the other hand, there is a provision in the Family Court Act that authorizes a judge to impose a period of incarceration of up to six months for a party’s failure to pay for no justified reason, although this is not considered penal in nature. 
 

          There are advantages and disadvantages to pursuing a case in Family Court as opposed to Criminal Court and vice versa.  These distinctions are based primarily on the different procedures, standards of proof, applicable provisions, etc. that are particular in each court. For example, in criminal cases the burden of proof is on the prosecution and the standard of proof is “beyond a reasonable doubt”.  This means that the prosecutor must prove that the party (defendant) accused of committing the crime did in fact commit the crime, by proving every element of the crime.  They must do this by putting on a case where there is not just a “reasonable” doubt but a doubt beyond what a reasonable person would have.  While in Family Court cases, either the agency ( CPS/ACS or Corporation Counsel) or the other party has the burden of proving that the party petitioned (respondent) did in fact commit the act alleged  The standard of proof in these cases is either a “preponderance of the evidence” or “clear and convincing evidence”, depending on the phase of the case. Additionally, other rules of evidence, i.e. hearsay, differ in their application, as well as the use and application of constitutional provisions. The penal law, criminal procedure law, the civil practice rules, as well as some administrative codes apply to criminal cases, while the Family Court Act, Social Service Law, Mental Hygiene Law, civil practice rules apply to family law cases.  Although some of these principles overlap, their applicability to the different cases determine the manner in which they govern, which ultimately affects the outcome of the case. 

          Of course there are sections of the penal law that apply regardless of which court the parties are in or the type of case.  Perjury, which is lying under oath; filing a false report/claim; forgery; contempt (although civil contempt is more likely); illegal possession of an official document are all criminal charges that may result from a case in Family Court or any other court for that matter. Since Family Court judges have no jurisdiction to proceed on a Criminal Court case and the power to prosecute is within the District Attorney’s office, if there has been a crime committed in a family law case, that court must refer the case for prosecution.  The discretion to prosecute lies with the District Attorney’s office, so merely referring a case to the office does not guarantee a criminal investigation or prosecution.  Family law issues that arise in Criminal Court do not necessarily need to be referred to the child protective agencies but certainly do not go unnoticed.  In other words, criminal cases that raises some issues of abuse or neglect or child support violations will certainly be addressed by the court but more often than not was already brought to the agency’s attention.  Again, since police officers are “mandated reporters”, they will call the agency at the time of an arrest therefore giving the agency the opportunity at the outset to file a petition.

          New York has established a courtroom specifically designed to handle the intersection of criminal and family law, where there is domestic violence.  The Integrated Domestic Violence Part’s main objective is to mainstream the overlapping issues, ensure  consistent rulings & outcomes and to provide trained workers to address the cornucopia of issues involved in these cases.  And although it certainly helps to have one judge hear all of the issues, both criminal and family law, there are times when a different set of issues result in the end.

           Feel free to contact us to discuss your criminal or family law case.

           When finalizing a divorce, contested only,request that the divorce judgment specifically indicates that the Supreme Court should have “exclusive” jurisdiction in cases where there are intricate issues regarding child support and/or custody.  This will ensure that the original judge that decided the matter will hear violations, modifications and/or enforecement issues and not a Support Magistrate or Referee who has no knowledge or background of the case.

         Despite our very lax moral standards today, married parents are still treated differently from  never married parents in Family Court, Supreme Court and Criminal Court in New York, based on traditional values.  Depending on whom you ask, the distinction can be viewed as beneficial in outcome to either parent and favorable with respect to treatment by the courts. 

         Of course divorce only applies to married individuals so that is the only way any other related issues arising out of the marriage can be heard in Supreme Court.  Although once the parties are actually divorced, child support, alimony (maintenance), property distribution may be heard in Supreme Court.  However, there are limits to this, where a violation , contempt or modification of some property issue, arising out of the divorce judgment, is part of the application to that court and where the divorce judgment specifically states that the Supreme Court has “exclusive” jurisdiction.  Otherwise, the issues of child support, child custody/visitation will be heard in Family Court once the parties are no longer married.

         In paternity cases, there is a “presumption of legitimacy” which is the assumption that a child born out of a legal marriage is a child of the parties.  This presumption can be rebutted by either party but may be difficult if there is no other identifiable person conceding paternity.  Particularly for child support, a father’s claim that he is not the father, despite the fact that the parties were married at the time of conception, will not automatically absolve the father of his obligation to support the child.  The courts can deny his application based on the theory of “estoppel“.

         In child support cases paternity must be established before the petition can be heard by the court.  However, again where the parties are married or were married at the time of conception, the court will assume that the husband is the father.  Also, with respect to married parties where only the mother is the biological parent, the stepparent may be obligated to pay child support if he has been providing support for the child during the marriage.  This would not be the case if the parties were just living together, a paramour has no financial obligation to the child of his partner even if he has done so in the past.

         Spousal support may be requested in Family Court when the parties are married.   If there is a divorce pending however, the court will try to direct the parties to address this issue in Supreme Court as part of the divorce. 

         In child custody or visitation cases, the fact that the parties were married, assuming they lived together, will help the court to determine the relationship between the parents and child, the involvement of both parents with the child, the environment maintained with both parents being present, the standard of living enjoyed by the child with both parents in the home-amongst a host of other factors.  Since married parties are viewed as much more focused and able to provide a stable environment, they are given the benefit of starting out of level playing field.  This however, is not the case when there is a history of domestic violence or child abuse.  There is no distinction where parties are or were married but one of the parents is the stepparent.  Stepparents have no rights to petition for custody or visitation of their stepchild.

         In adoption proceedings, again if the parties were married or are married, he must consent to terminate or surrender his legal rights.   And unlike cases where the father has abandoned the child, a father that was married to the mother at the time of conception must be put on notice and given the opportunity to consent or object.

          In guardianships, where the parties are married but one is the biological parent, the other being the stepparent and the other biological parent is deceased the stepparent may petition for guardianship only.  While if the parties were not married, the stepparent would have no “standing” to petition the court for either custody or guardianship since the child has one biological parent still living.

         In name change cases, if the child was conceived out of a legal marriage, the court will not permit the changing of the child’s name if the other parent does not consent.  Particularly where the mother wants to change the child’s name from the father’s name to someone else’s name, the court will require a showing of being in the child’s best interest.  There are exceptions, for instance in cases of domestic violence or child abuse/neglect.  A child born out of a legal marriage will more than likely have his fahter’s name (even if the child is not biologically his), whereas non-married parents must sign an Acknowledgement of Paternity to have the father’s name or add his name  to the birth certificate or to be considered the “putative” father.  The former will negate the need for the court to establish paternity in child support or child custody matters, while the latter will not.

        In juvenile delinquency or PINS cases, an integral part of the court process is the investigation conducted by the Department of Probation.  Their job is to assess the child’s home environment, academics and psychological/emotional issues involved with the family.  Again, the fact that the parents are or were married gives the court the impression that there is or was stability in the home and will use this to determine what the disposition should be if the case actually makes it to this stage.

          In domestic violence situations, an order of protection may be filed in Family Court where the parties are related by blood, consangjity or marriage or has a child in common.  However, where the parties are married and order of protection may be obtained in Supreme Court as part of a divorce action.

          Procedurally, there is no need for registering with the Putative Father Registry if you were married to the mother at the time of conception.  This registry serves the purpose of putting the non-married father (where paternity has not been established) on notice of the child being the subject of adoption, termination of parental rights and/or foster care.

         Filing any type of petition in Family Court will require a copy of the divorce judgment where the parties were married.  The court will request the status of the marriage if there is no divorce.

Feel free to contact my office to discuss your family law matters.