Lawyers Manual - Unified Court System

Moving On: UCCJEA, The Hague Convention, and Relocation 111
If the father obtains a writ, even if he is an abuser, your client will be
required to return to New York, but she will have an opportunity to be heard.
You should be prepared to argue that she did not “wrongfully” deny him access
to the child and that her conduct was not “unjustifiable.” 50 You should document
the domestic violence and establish that leaving was important for her and the
child’s safety. Sheridan v Sheridan51 may be a helpful case. Although decided
before the UCCJEA was passed, it held that there were exceptional
circumstances, including domestic violence and economic necessity, warranting
relocation of the mother with her child to Puerto Rico even though it was
undisputed that the move would clearly deprive the father of “regular and
meaningful visitation.” 52
If the father files for custody in New York after she flees but within six
months, the first issue is whether your client wants to respond only in New York
or whether she also wants to file for temporary emergency jurisdiction in her
new location and ask that New York decline to exercise its home state priority.
In most cases, your client would like to litigate in the refuge state for reasons of
safety, travel, and cost considerations, but arguing that New York decline
jurisdiction over the final custody decision will probably be a very tough sell.
Additionally, it may be in your client’s interest to litigate in New York where the
law supports domestic violence victims and where she has an attorney.
In either case, you should ask the New York court to allow your client to
retain temporary custody and to relocate immediately to her new location. Your
success will largely depend on whether the court finds that the allegations of
domestic violence are credible and that it is in the child’s best interest to remain
where he or she is currently living. New York courts have awarded custody to
domestic violence victims in such cases, even if they have relocated without a
court order. 53
Although you may have an uphill battle, you can ask New York to decline
to exercise its home state jurisdiction; the court can do so under the inconvenient
forum provision of the UCCJEA. 54 The UCCJEA specifically delineates
domestic violence as a factor for the court to consider in deciding whether or
not to exercise jurisdiction. 55 Although decided under the UCCJA, the court in
Swain v Vogt56 declined to exercise jurisdiction when the mother was forced to
flee New York due to violence. The Court held that “[i]t is axiomatic that
Family Court, having not yet made a decree concerning custody in this case,
may decline to exercise its jurisdiction if it finds that it is an inconvenient forum
to make a custody determination.” 57