Articles Posted in Custody

The Indian Child Welfare Act (ICWA) of 1978 is a federal law designed to protect the best interests of Native American children and preserve the stability and security of Indian tribes and families. While originally enacted to address the alarming rate of Native American children being removed from their families by nontribal agencies, the ICWA has broader implications for child custody matters, including those in New York.

In New York, the ICWA applies not only to federally recognized tribes but also to tribes recognized by the state. This recognition expands the jurisdictional reach of the ICWA, ensuring that Native American children and families in New York receive the law’s protections. The ICWA establishes minimum federal standards for the removal of Indian children from their families and placement in foster care or adoptive homes that reflect the unique values of Indian culture.

One of the key provisions of the ICWA is its jurisdictional framework, which governs where child custody proceedings involving Native American children should take place. Under the ICWA, tribes have exclusive jurisdiction over such proceedings when the child resides or is domiciled within the tribe’s reservation. However, in cases where the child is not domiciled on the reservation, the ICWA creates concurrent jurisdiction, with a presumption in favor of tribal jurisdiction.

In Hendershot v. Hendershot, 187 A.D.3d 1584 (N.Y. App. Div. 2020), a father appealed against a court order that increased the mother’s visitation rights with their children. Under New York law, in order for there to be a custody modification, there must be a change in circumstances.

A “change in circumstances” refers to significant alterations in the living situation, health, or welfare of a child or parent that impacts a child custody arrangement established by a previous court order. This change must be substantial enough to justify reevaluating the custody or visitation terms to ensure they continue to serve the best interests of the child. Common examples include relocation, changes in a parent’s lifestyle or health, alterations in the child’s needs or preferences, or any developments that materially affect the parent’s ability to provide a stable and supportive environment for the child.

Background Facts

This case involved a dispute over parental relocation. The mother, who had primary custody of the child, sought permission from the court to relocate with the child to Florida. The father opposed the move, and the matter was brought before the court for a decision. The court had to determine whether the proposed relocation was in the best interests of the child, as required by New York law.

Background Facts

The mother and father had divorced, and custody of their child was shared, with the mother being the primary custodial parent. The mother filed a petition seeking to modify the custody and visitation arrangements that were part of their divorce judgment. She requested permission to move with the child to Florida, citing her desire to care for her ill father, who lived there. The father opposed the relocation, arguing that it would negatively impact his relationship with the child and was not in the child’s best interests.

Child custody disputes with jurisdictional issues present significant challenges, especially when the children have been residing in a state other than New York. One of the primary challenges is determining which state has jurisdiction over the case, as this impacts various aspects of the legal proceedings, including custody determinations and child support orders.

When children have been living outside of New York, the issue of “home state” jurisdiction arises under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Establishing the “home state” is crucial because it dictates which state’s courts have primary jurisdiction over custody matters. However, when children have resided in a different state for an extended period, as in this scenario, determining the “home state” becomes complex and may require careful examination of the children’s residency history.

Furthermore, conflicting claims of residency between the parents add another layer of complexity to jurisdictional disputes. In cases where one parent asserts residency in New York while the other claims residency in another state, the court must carefully evaluate the evidence presented by both parties to determine the children’s primary residence and the state with the most significant connections to their lives.

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a legal framework adopted by most states in the United States to provide clarity and consistency in child custody jurisdiction matters across state lines. It aims to prevent jurisdictional disputes and forum shopping, ensuring that custody determinations are made in the state that is most appropriate and connected to the child and the family.

Under the UCCJEA, the concept of “home state” is crucial in determining which state has jurisdiction over child custody matters. The “home state” is defined as the state where the child has lived with a parent (or a person acting as a parent) for a consecutive six-month period immediately before the commencement of a child custody proceeding. If the child is less than six months old, the “home state” is the state where the child has lived since birth.

When multiple states are involved in a custody dispute, the UCCJEA provides guidelines for determining which state has jurisdiction. Generally, the state that qualifies as the child’s “home state” will have primary jurisdiction over custody matters. However, if no state meets the criteria of being the child’s “home state,” the UCCJEA outlines other bases for jurisdiction, such as significant connections with the child or the child’s family, emergency circumstances, or whether no other state has jurisdiction.

Turkashwand v. Brock, 189 A.D.3d 1428 (N.Y. App. Div. 2020) was a case from Nassau County, New York, which involved modifications to custody and parental access. The case addresses an appeal by the mother against several Family Court orders concerning her custodial rights and the allegations against the father.

Jurisdiction over a custody decision is typically determined based on the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) guidelines, which prioritize the child’s “home state” as the primary jurisdiction for custody matters. The “home state” is defined as the state where the child has resided with a parent or guardian for a continuous period of at least six months prior to the custody proceeding’s initiation. If the child has no “home state” or if there is a dispute regarding jurisdiction, other factors such as significant connections with the state and substantial evidence relating to the child’s care, protection, training, and personal relationships are considered.

Additionally, courts may decline jurisdiction if it is determined to be an inconvenient forum and another state is deemed more appropriate based on factors such as the child’s connections to each state, the location of evidence and witnesses, and the parties’ ability to present their case effectively. Ultimately, the overarching goal is to ensure that custody decisions are made in the jurisdiction that can best serve the child’s interests and welfare.

Background Facts