Lawyers Manual - Unified Court System

Moving On: UCCJEA, The Hague Convention, and Relocation 105
One issue that arises is whether one can “knowingly without right” take a
child from his or her lawful custodian if there is no custody order and both
parents have rights to the child established through marriage or paternity.
Unfortunately, there is no clear answer to this question. Courts have given a
broad and flexible interpretation of what is sufficient to constitute a custody
order for the purposes of a charge of custodial interference. In People v Morel, 27
the Appellate Division upheld an indictment of custodial interference in the first
degree when the parties had agreed in open court that the mother was to have
exclusive physical custody of the child and that the terms of the stipulation had
made the mother the “lawful custodian.” 28 In People v Lawrow, 29 a trial court
refused to dismiss a charge of custodial interference in the second degree
although the defendant-parent had not been served with a custody order.
However, the court held that the State bears the burden to prove beyond a
reasonable doubt that the defendant had knowledge of the custody order even if
he had not been served.
Statues Governing International Issues
Custody cases frequently cross international borders. When they do, the
same issues that have dogged interstate cases cause substantial controversy in
international law:
When should a particular country take jurisdiction over a
custody case?
What should the court do to protect victims of abuse? and
When may one country modify the decision of another
country’s custody order?
UCCJEA
The UCCJEA explicitly authorizes New York Courts to analyze international
cases in the same way that it treats interstate cases. Section 75-d states that “a court
of this state shall treat a foreign country as if it were a state of the US for the
purpose of applying this article.” Indeed, New York courts have looked first to the
UCCJEA when considering international custody cases. Courts therefore ask the
same questions when determining international jurisdiction as they do in interstate
cases: Where has the child lived in the last six months? Is there an existing court
order? Is there an emergency that justifies asserting temporary jurisdiction?
Although the questions are the same, the application of the home state rule
can be even more problematic in international cases than in interstate cases and
the stakes can be even higher. Should the home state rule apply even if the child