Lawyers Manual - Unified Court System

Safety Issues
UCCJEA and Domestic Violence: A Case Study 125
Even when the foreign court refuses to relinquish jurisdiction, a concerned
New York court can take significant steps to ensure that domestic violence is
addressed by the foreign court. In Matter of Noel D. v Gladys D., 21 the New
York court, deeply troubled by a default award of custody in Illinois to a parent
with an extensive history of mental instability and violence that was unknown to
the Illinois court, retained temporary emergency jurisdiction until such time as it
could be assured that Illinois would address the significant safety issues, even
though the Illinois court refused to give up continuing, exclusive jurisdiction.
Like the court in Noel D., the Bronx IDV court was presented with a default
order of custody granted without adequate knowledge on the part of the original
court about the history of domestic violence in the home. In both cases, the
courts had concerns about the capacity or willingness of the originating court to
protect the safety of the parties before it. The Noel D. court determined to hold
on to the case until the Illinois court could assure the safety of the mother and
child. The Bronx IDV court, in Hector G., examined whether the court in the
Dominican Republic would ever be in a position to protect this mother and her
children, since the UCCJEA permits a court to assume jurisdiction if foreign
proceedings do not conform to our basic jurisdictional standards. 22
It cited the Department of State Country Report on Human Rights Practices
for the Dominican Republic, 23 noting that the Dominican Republic had no laws
against domestic violence until 1997, that domestic violence was “widespread,”
affecting 40% of the country’s women and children, and that there were no
shelters for battered women there, as of March 2003. 24
Logistical Concerns and Determination of “Convenient Forum”
Whether there are sufficient resources for the family in the other jurisdiction
is a factor to be considered under the analysis of “convenient forum.” 25 Even
where a court can take jurisdiction — as when the originating judge agrees to it
— the new court may nevertheless consider whether it should take jurisdiction,
based on assessment of whether it is an “inconvenient forum” and another
forum may be more appropriate. Here the court must consider multiple factors:
1. 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;
2. the length of time the child has resided outside this state;