parole – release of a convicted criminal from prison before his or her full term of incarceration but with restrictions and conditions.

personal service – a means by which a party to a lawsuit receives notice of a court action typically accomplished by handing the notice and other legal documents to the person. Many jurisdictions allow additional methods of service.

pick-up order – a court order directing local law-enforcement officials to pick-up a child from his or her abductor. This is also called a warrant to take physical custody of child or warrant in lieu of a writ of habeas corpus.

PKPA – Parental Kidnapping Prevention Act.

probation – release of a convicted criminal with no incarceration or before his or her full term of incarceration but with restrictions and conditions.

pro bono – free legal representation provided by an attorney.

pro se – a person who represents him- or herself in a court proceeding.

prosecutor – a person in the criminal-justice system who can file criminal charges against and prosecute an abductor for violating the law. Also called a district attorney, state’s attorney, commonwealth attorney, or solicitor. Federal prosecutors are called U.S. Attorneys and Assistant U.S. Attorneys.

search warrant – a legal order issued by a court allowing law enforcement to locate and take possession of private records, evidence, and information from a specific location for a criminal investigation.

state – as used herein includes a state of theUnited States of America; theDistrict of Columbia; and any commonwealth, territory, or possession of theUnited States.

subpoena – legal order used in civil and criminal proceedings to demand an individual to come to court. A subpoena may also demand private records and information be produced for inspection or in court.

substitute service – a substitute for personal service. Both parties to a lawsuit must receive notice of all court actions. If a party cannot be found or deliberately conceals his or her whereabouts, most jurisdictions allow publication as an alternative to personal service.

temporary custody – custody for a limited time period. A judge may issue a temporary custody order before hearing the full case from both parents or after a trial but with the expectation of reviewing the custody decision in the near future. Temporary orders are issued in emergency cases.

UCAPA – Uniform Child Abduction Prevention Act.

UCCJA – Uniform Child Custody Jurisdiction Act.

UCCJEA – Uniform Child Custody Jurisdiction and Enforcement Act.

USNCB-INTERPOL – U.S. National Central Bureau of INTERPOL.

If you need a family law attorney in the Orange County area to address move away and custody issues, contact Trevino Law, Inc. at (949) 643-5662.  Visit our website at www.LawintheOC.com

Imagine that a couple lives in New York and they have two elementary school children. The couple has marital trouble for a period of time and the wife and children left New York several months ago to live in her home state of Florida. There are several jurisdictional questions to consider before a New York court could handle all aspects of this case.

First, New York’s Long-Arm statute must give it jurisdiction over the out-of-state spouse. CPLR §  302(b) gives New York jurisdiction over a spouse that has moved out of New York when the spouse that is starting the action is domiciled in or is a resident of New York when he starts the case, as long as New York was the “matrimonial domicile” of the couple before they separated.

Next, for New York to have jurisdiction over any matrimonial action,  Domestic Relations Law (“DRL”) § 230 (2) must apply. This statute, in part, requires that the parties must have resided in New York as husband and wife and that either spouse is a resident of the state for at least one year leading up to the commencement of the divorce proceedings.

But even if one is able to have a matrimonial case heard by a New York court, that fact alone does not necessarily mean that the court will have jurisdiction over matters of custody. It is possible that the jurisdictional requirements for the divorce will be met but that the requirements for custody jurisdiction will not be met, and that some other state will have jurisdiction in a custody proceeding. Vanneck v. Vanneck, 404 N.E.2d 1278, 1280, 1282 (1980).

DRL § 76, enacted to conform  to the Uniform Child Custody Jurisdiction Act (“UCCJA”), only grants New York jurisdiction to make initial child custody decisions when (a) New York is the “home state” of the children involved (see § 75-a(7) for definition) in the six months preceeding the legal proceeding.. Additionally, (b) no other state must have custody jurisdiction according to the definition in (a) above, or, if it does, that it must have declined jurisdiction on the grounds that New York would be a more appropriate forum.

Situations exist where a matrimonial/custody case would be bifurcated, with, for example, the New York Supreme Court handling the divorce and property distribution aspects of the case and Florida courts deciding matters of custody. As one judge put it, such cases “turn[] on the connection between divorce jurisdiction and custody jurisdiction.  At one time the two may have been inseparable; but the P.K.P.A. [Parental Kidnapping Prevention Act], in particular, has placed these issues on different jurisdiction terrain.” Foley v. Foley, 170 Misc.2d 87, 89 (Sup. Ct. Monroe Cty 1996).

Although courts will consider whether they have jurisdiction over the divorce and custody sides of a case separately, how that decision affects the best interests of the children involved will be considered. The hardship inherent in different states handling the divorce and custody issues separately will also be factored into a court’s decision about whether to bifurcate the two issues in the case. Vanneck, supra, at 1280.

If a couple finds itself in a situation where one spouse has lived outside of New York with the children for more than six months and the other spouse still lives in New York, it would seem that there are a couple of options. Based on the statutes mentioned above, the state where the children live would normally have jurisdiction over issues of custody and the couple may elect to litigate the divorce there too if that state’s jurisdictional rules would allow that. This would simplify the process by avoiding a split litigation between states and it would avoid forcing the spouses to hire two lawyers each, one for each state. 

Alternatively, the out-of-state spouse may wish to simply consent to New York’s jurisdiction over issues of custody, but this is not so simple because matters of jurisdiction cannot be waived or stipulated to. Koshetz v. Lamberti, 262 A.D.2d 611 (2d Dept. 1999). However, since a court will make jurisdictional determinations based on the particular facts of a case, the parties may stipulate to certain issues of fact, which the court will use as its basis to find that it has custody jurisdiction. Caroline B. v. Thomas A.B., 16 Misc.3d 1128(A) (N.Y. Fam. Ct., 2007).

For example, if it is somewhat ambiguous whether the wife left New York permanently or simply to get some time away from her husband, the couple may stipulate to the fact that her stay out-of-state was a mere “temporary absence” and will not be credited to establishing “home state” status for the child in that other state. See DRL § 75-a(7). The parties may therefore stipulate to facts upon which the court will make a jurisdictional determination, but they may not stipulate to, waive, or consent to jurisdiction where the facts do not warrant it.

The bottom line is that anyone contemplating divorce, especially in less-than-typical factual situations, has many factors to consider before deciding where and how to proceed. As always, if you need assistance in any matrimonial, custody, child-support, paternity or visitation matter, you are invited to contact our office.

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