Lawyers Manual - Unified Court System

126 Mary Rothwell Davis
3. the distance between the court in this state and the state that
would assume jurisdiction;
4. the relative financial circumstances of the parties;
5. any agreement of the parties as to which state should assume
jurisdiction;
6. the nature and location of the evidence required to resolve the
pending litigation, including testimony of the child;
7. the ability of the court of each state to decide the issue
expeditiously and the procedures necessary to present the
evidence; and
8. the familiarity of the court of each state with the facts and
issues in the pending litigation. 26
While the difficulty of taking evidence in a particular jurisdiction is a factor to
be considered, the UCCJEA nevertheless contains multiple provisions intended to
make interstate litigation easier by including measures that can ease or eliminate
logistical concerns. One party may be required to bear the cost of transportation
for the other. 27 More innovatively, the UCCJEA sets forth procedure for “taking
testimony in another state, including testimony and deposition by telephone,
audiovisual means, or other electronic means before a designated court or at
another location in that state.” 28 The UCCJEA also allows courts of different
jurisdictions to cooperate fully in management of a custody matter. A court of one
state may request a court of another state to hold an evidentiary hearing, order a
person to produce evidence, or order an evaluation with respect to a child
involved in a pending proceeding; forward transcripts of proceedings; direct a
party to appear, with or without the child; and enter orders. 29 Thus even when a
jurisdictional ruling is disappointing to one’s client, application can still be made
to conduct significant parts of the litigation in the alternate jurisdiction.
Unjustifiable Conduct Exemption
Lastly, in the case before the Bronx IDV, the father alleged that the mother
had violated a Dominican court order by failing to return with the children after
an authorized visit, instead taking them to, and retaining them in, New York.
While the UCCJEA denies protection to a person who has engaged in
“unjustifiable conduct,” there is an express exemption for “any taking of the
child, or retention of the child after a visit or other temporary relinquishment of
physical custody, from the person who has legal custody, if there is evidence
that the taking or retention of the child was to protect the [party] from domestic