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Uniform Child Custody Jurisdiction and Enforcement Act

Domestic Relations Law 76
UCCJEA

DRL 76: Jurisdiction



DRL 76: UCCJEA TITLE II

Title II: Jurisdiction



Section 76. Initial child custody jurisdiction.


76-a. Exclusive, continuing jurisdiction.

76-b. Jurisdiction to modify determination.

76-c. Temporary emergency jurisdiction.

76-d. Notice; opportunity to be heard; joinder.

76-e. Simultaneous proceedings.

76-f. Inconvenient forum.

76-g. Jurisdiction declined by reason of conduct.

76-h. Information to be submitted to court.

76-i. Appearance of parties and child.


S 76. Initial child custody jurisdiction.

1. Except as otherwise provided in section seventy-six-c of this title, a court of this state has jurisdiction to make an initial child custody determination only if:


(a) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;


(b) a court of another state does not have jurisdiction under paragraph (a) of this subdivision, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section seventy-six-f or seventy-six-g of this title, and:

(i) the child and the child`s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and

(ii) substantial evidence is available in this state concerning the child`s care, protection, training, and personal relationships;


(c) all courts having jurisdiction under paragraph (a) or (b) of this subdivision have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section seventy-six-f or seventy-six-g of this title; or


(d) no court of any other state would have jurisdiction under the criteria specified in paragraph (a), (b) or (c) of this subdivision.


2. Subdivision one of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.


3. Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.


S 76-a. Exclusive, continuing jurisdiction.

1. Except as otherwise provided in section seventy-six-c of this title, a court of this state which has made a child custody determination consistent with section seventy-six or seventy-six-b of this title has exclusive, continuing jurisdiction over the determination until:


(a) a court of this state determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child`s care, protection, training, and personal relationships; or


(b) a court of this state or a court of another state determines that the child, the child`s parents, and any person acting as a parent do not presently reside in this state.


2. A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section seventy-six of this title.


S 76-b. Jurisdiction to modify determination.

Except as otherwise provided in section seventy-six-c of this title, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under paragraph (a) or (b) of subdivision one of section seventy-six of this title and:


1. The court of the other state determines it no longer has exclusive, continuing jurisdiction under section seventy-six-a of this title or that a court of this state would be a more convenient forum under section seventy-six-f of this title; or


2. A court of this state or a court of the other state determines that the child, the child`s parents, and any person acting as a parent do not presently reside in the other state.


S 76-c. Temporary emergency jurisdiction.

1. A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child, a sibling or parent of the child.


2. If there is no previous child custody determination that is entitled to be enforced under this article and a child custody proceeding has not been commenced in a court of a state having jurisdiction under sections seventy-six through seventy-six-b of this title, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under sections seventy-six through seventy-six-b of this title. Where the child who is the subject of a child custody determination under this section is in imminent risk of harm, any order issued under this section shall remain in effect until a court of a state having jurisdiction under sections seventy-six through seventy-six-b of this title has taken steps to assure the protection of the child. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under sections seventy-six through seventy-six-b of this title, a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.


3. If there is a previous child custody determination that is entitled to be enforced under this article, or a child custody proceeding has been commenced in a court of a state having jurisdiction under sections seventy-six through seventy-six-b of this title, any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under sections seventy-six through seventy-six-b of this title. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires, provided, however, that where the child who is the subject of a child custody determination under this section is in imminent risk of harm, any order issued under this section shall remain in effect until a court of a state having jurisdiction under sections seventy-six through seventy-six-b of this title has taken steps to assure the protection of the child.


4. A court of this state which has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under sections seventy-six through seventy-six-b of this title, shall immediately communicate with the other court. A court of this state which is exercising jurisdiction pursuant to sections seventy-six through seventy-six-b of this title, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.


S 76-d. Notice; opportunity to be heard; joinder.

1. Before a child custody determination is made under this article, notice and an opportunity to be heard in accordance with the standards of section seventy-five-g of this article must be given to all persons entitled to notice under the law of this state as in child custody proceedings between residents of this state, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.


2. This article does not govern the enforceability of a child custody determination made without notice or an opportunity to be heard.


3. The obligation to join a party and the right to intervene as a party in a child custody proceeding under this article are governed by the laws of this state as in child custody proceedings between residents of this state.


S 76-e. Simultaneous proceedings.

1. Except as otherwise provided in section seventy-six-c of this title, a court of this state may not exercise its jurisdiction under this title if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this article, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under section seventy-six-f of this title.


2. Except as otherwise provided in section seventy-six-c of this title, a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to section seventy-six-h of this title. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this article, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this article does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.


3. In a proceeding to modify a child custody determination, a court of this state shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child custody determination has been commenced in another state, the court may:


(a) stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement:


(b) enjoin the parties from continuing with the proceeding for enforcement; or


(c) proceed with the modification under conditions it considers appropriate.


S 76-f. Inconvenient forum.

1. A court of this state which has jurisdiction under this article to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the child or the law guardian, or upon the court`s own motion, or request of another court.


2. Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:


(a) whether domestic violence or mistreatment or abuse of a child or sibling has occurred and is likely to continue in the future and which state could best protect the parties and the child;


(b) the length of time the child has resided outside this state;


(c) the distance between the court in this state and the court in the state that would assume jurisdiction;


(d) the relative financial circumstances of the parties;


(e) any agreement of the parties as to which state should assume jurisdiction;


(f) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;


(g) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and


(h) the familiarity of the court of each state with the facts and issues in the pending litigation.


3. If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.


4. A court of this state may decline to exercise its jurisdiction under this article if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.


S 76-g. Jurisdiction declined by reason of conduct.

1. Except as otherwise provided in section seventy-six-c of this title or by other law of this state, if a court of this state has jurisdiction under this article because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:


(a) the parents and all persons acting as parents have acquiesced in the exercise of jurisdiction;


(b) a court of the state otherwise having jurisdiction under sections seventy-six through seventy-six-b of this title determines that this state is a more appropriate forum under section seventy-six-f of this title; or


(c) no court of any other state would have jurisdiction under the criteria specified in sections seventy-six through seventy-six-b of this title.


2. If a court of this state declines to exercise its jurisdiction pursuant to subdivision one of this section, it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the unjustifiable conduct, including staying the proceeding until a child custody proceeding is commenced in a court having jurisdiction under sections seventy-six through seventy-six-b of this title.


3. If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction pursuant to subdivision one of this section, it shall assess against the party seeking to invoke its jurisdiction necessary and reasonable expenses including costs, communication expenses, attorney`s fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be inappropriate. No fees, costs or expenses shall be assessed against a party who is fleeing an incident or pattern of domestic violence or mistreatment or abuse of a child or sibling, unless the court is convinced by a preponderance of evidence that such assessment would be clearly appropriate. The court may not assess fees, costs, or expenses against this state unless authorized by law other than this article.


4. In making a determination under this section, a court shall not consider as a factor weighing against the petitioner any taking of the child, or retention of the child after a visit or other temporary relinquishment of physical custody, from the person who has legal custody, if there is evidence that the taking or retention of the child was to protect the petitioner from domestic violence or the child or sibling from mistreatment or abuse.


S 76-h. Information to be submitted to court.

1. Subject to subdivision five of this section, in a child custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child`s present address or whereabouts, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit must state whether the party:


(a) has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child custody determination, if any;


(b) knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding; and


(c) knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons.


2. If the information required by subdivision one of this section is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.


3. If the declaration as to any of the items described in paragraphs (a) through (c) of subdivision one of this section is in the affirmative, the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and other matters pertinent to the court`s jurisdiction and the disposition of the case.


4. Each party has a continuing duty to inform the court of any proceeding in this or any other state that could affect the current proceeding.


5. Upon a finding, which may be made ex parte, that the health or safety of a party or child would be unreasonably put at risk by the disclosure of identifying information, or if an existing order so provides, a tribunal shall order that the address of the child or party or other identifying information not be disclosed in a pleading or other document filed in a proceeding under this article. Notwithstanding any other provision of law, if the party seeking custody of the child has resided or resides in a residential program for victims of domestic violence as defined in section four hundred fifty-nine-a of the social services law, the present address of the child and the present address of the party seeking custody and the address of the residential program for victims of domestic violence shall not be revealed. Upon making an order that the address of the child or party or other identifying information not be disclosed, the court shall designate the clerk of the court or such other disinterested person as the agent for service of process for the party whose address is to remain confidential and shall notify the adverse party of such designation in writing. The clerk or disinterested person designated by the court shall, when served with process on behalf of the party whose address is to remain confidential, promptly notify such party whose address is to remain confidential and forward such process to him or her. The party whose address is to remain confidential shall inform the clerk of the court or disinterested person designated by the court of any change in address for purposes of receipt of service of process.


S 76-i. Appearance of parties and child.

1. In a child custody proceeding in this state, the court may order a party to the proceeding who is in this state to appear before the court in person with or without the child. The court may order any person who is in this state and who has physical custody or control of the child to appear in person with the child.


2. If a party to a child custody proceeding whose presence is desired by the court is outside this state, the court may order that a notice given pursuant to section seventy-five-g of this article include a statement directing the party to appear in person with or without the child and informing the party that failure to appear may result in a decision adverse to the party.


3. The court may enter any orders necessary to ensure the safety of the child and of any person ordered to appear under this section.


4. If a party to a child custody proceeding who is outside this state is directed to appear under subdivision two of this section or desires to appear personally before the court with or without the child, the court may require another party to pay reasonable and necessary travel and other expenses of the party so appearing and of the child.



LINK TO SECTIONS OF THE UCCJEA

DRL 75     DRL 76    DRL 77    DRL 78    DRL 78-a




This section of the Domestic Relations Law is provided as part of a free educational service by J. Douglas Barics, attorney at law for reference only. Statutes and codes such as the UCCJEA -  DRL 76 are frequently amended, and no representation is made that the above version of DRL 76 - UCCJEA Title II - Jurisdiction is current. Updated statutes and codes may be available at the New York State Legislature Website. No statute should be relied on without understanding controlling case law which may further interpret it. An attorney should be consulted for legal advice.


If you have any questions or comments, please feel free to contact Mr. Barics at lawyer@jdbar.com or (631) 864-2600. For more articles and information, please visit www.jdbar.com.


J. Douglas Barics, Esq. – Divorce, family, matrimonial, trial and appeals lawyer in Long Island, New York



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