In a divorce or legal separation, the spouses must resolve the issue of custody of their child or children. The parents may agree on a parenting plan or, if they cannot, a court would determine a parenting plan for them. In both cases, a court order incorporates the plan, and it includes provisions for child custody and visitation.
The parenting plan states where the child is going to live, which is physical custody, and who will make the decisions about the child’s upbringing, which is legal custody. If the child lives primarily with one parent, that parent is referred to as the “custodial parent,” and the other parent is called the “noncustodial parent.”
In a case in which one parent has primary physical custody, the noncustodial parent is usually granted visitation. The right to visitation gives the noncustodial parent the opportunity to spend time with their child on a regular basis and maintain their parental relationship with them.
Parenting plans must serve the best interest of the child. This is the legal standard that courts in New York apply to decisions regarding child custody and visitation decisions. Until the parents agree on a plan or the court determines what the plan is going to be, both parents have equal rights to custody, both physical and legal. Interstate child custody and visitation would be no different. The best interest of the child would be the standard.
It is always important for divorced or separated parents to recognize that if they want to make significant changes to their parenting arrangements, they should go to court and follow legal procedures. This is the course of action that is going to serve them best in the long run.
What Is Interstate Child Custody and Visitation Under New York Law?
If the parents of a child live in different states, a question arises as to which state’s courts should decide issues of custody and visitation. New York has enacted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which has been adopted as law in 48 other states as well. The issue of how to proceed if the parents live in different states, or want to, is one of the top child custody questions.
The UCCJEA establishes that the child’s “home state” has primary jurisdiction. The term “home state” is defined as the state in which the child has lived with one or both of their parents for at least 6 consecutive months before any custody proceedings begin. With this rule, the state that has jurisdiction is clear, and parents cannot try to file their case in a court they see as more favorable in a different state.
If no state qualifies as the home state under the 6-month rule, jurisdiction would be decided on the basis of significant connections. The state with which the child has significant connections, such as family, schooling, or medical care connections, would be the state that has jurisdiction in a custody and visitation case regarding the child. A court in that state would decide on the parents’ child custody arrangements.
If the home state were to decline jurisdiction, another state may assume it if deemed more appropriate. Emergency jurisdiction allows temporary custody decisions if the child is present in a state and faces abandonment, mistreatment, or abuse. Once the emergency child custody situation is resolved, the case should revert back to the home state or a state with significant connections for a long-term resolution of any issues that remain.
What Should I Know When Traveling Out of New York With My Child?
In general, a parent needs to get the permission of the other parent to take their child out of the state where the child resides, even if the out-of-state trip is only for a vacation. Permission would be especially necessary if the trip interferes with the other parent’s court-ordered visitation.
A parent who has sole physical custody can take the child out of state without consent. However, if their custody order prohibits this, they would have to get the permission of the other parent. The trip cannot interfere with the noncustodial parent’s time with the child.
So, one thing every parent would want to do before taking their child out of the state in which they live would be to consult their most recent custody order. If they are not sure about their situation, a legal consultation in New York with a New York lawyer would help them figure out what they can and cannot do.
What Issues Can Arise From Relocating Out of New York?
The UCCJEA provides a priority hierarchy of four bases for one state taking jurisdiction over initial child custody decisions. A particular state’s court has the authority to determine child custody questions only if one of these tests is met.
The four tests, in order of priority, are as follows:
- The state is a child’s “home state.”
- There is a “significant connection” between a state and the parties to a child custody dispute.
- A state has “emergency” jurisdiction when the child is present and the child’s welfare is threatened.
- The child is present in the state if there is no other state with a good basis for exercising authority in the case.
A parent may seek to modify a custody order in a state that is different from the state in which the initial custody order was issued. Once one state has assumed authority to decide a custody case, that state has exclusive and continuing authority to hear and decide all issues after the original decisions relating to custody or visitation in that case.
However, a court in another state can modify the original state’s court order, but only if:
- The proposed state has the authority under the “home state” or “significant connection” tests, and
- Either the original state’s court determines it no longer has exclusive, continuing authority or the proposed state would be a “more convenient forum,” or
- The original state’s court or the proposed state’s court determines that neither the child nor either parent lives in the other state. A state in which none of the parties lives would not have authority to make decisions relating to their child custody issues.
How Does the Federal Parental Kidnapping Prevention Act Apply in New York?
Parental kidnapping refers to a situation in which one parent takes their child in violation of the other parent’s right to custody and/or visitation. For example, one parent might keep a child beyond the time limit imposed by the terms of their visitation order. They may refuse to transfer custody of their child to the other parent when their plan requires it.
On some occasions, a parent may leave New York with their child because they think they are going to get a different parenting arrangement, one more advantageous for them, in another state. This is completely illegal and would not end well for the parent who engages in the kidnapping.
The federal law known as the Parental Kidnapping Prevention Act (PKPA) forbids a parent from interfering with the other parent’s custody and visitation rights through kidnapping. The PKPA sets a uniform nation-wide standard for determining which state has the authority to make decisions regarding a parenting plan in cases involving parents residing in different states. It acknowledges the UCCJEA.
Under the PKPA, a court order regarding child custody and visitation from one state is enforceable in all other states in the U.S.. The PKPA recognizes that the courts in a child’s home state have the authority to make decisions about parenting plans initially. As noted above, the “home state” is the state where a child most recently lived with their parents before they divorced or separated.
Other state courts may not modify a custody order in a case in which the child’s home state continues to be the state that has the authority to manage the case. If there is no state that would qualify as a child’s “home state” under the PKPA, then only a state that has significant contacts with the child may exercise authority to decide child custody issues relating to that child.
Do I Need a New York Lawyer for My Issues With Interstate Child Custody and Visitation?
If you want to take your child out of New York, or have an ex-spouse who does, you want to talk to a New York child custody lawyer right away. As you can see from the information above, interstate issues can get complex and technical. It is best to try to navigate them with the professional advice of an attorney who is familiar with the many laws that may apply. This would be the best way to get the result you need for your situation.
