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In the event of divorce, the issue of child custody can be a source of pain and turmoil for both children and parents. No matter which parent is awarded custody, children can feel a great sense of loss. Their trust in permanency is tested, there may be aspects in separating them from one of their parents which cause emotional distress. It is always in the best interests of a child for both parents to come to a mutual agreement regarding their child’s welfare and living arrangments after a divorce.
Even if a divorce was mutually agreed upon, there needs to be legal documentation filed regarding details of child custody arrangements, support, and stipulations on relocation. Most, if not all child custody agreements, contain details and stipulations regarding relocation.
In a 1996 custody case, New York’s highest Court, the Court of Appeals, determined that the relocation of children, even if relocating with the parent who has main or sole custody of the child, must be in the best interest of the child and should not be a cause for undue interference in the child’s relationship with their non-custodial parent.
Both parents have equal rights to have contact with their child and both parents have equal rights to move on from their divorce to live their lives with other people and in other places. If one parent disputes the relocation of their child, they have a right to request assistance from the law to prevent the relocation. The court’s only view is what is best for the child.
Only an experienced attorney can advise you on your particular custody and relocation case, and if you are attempting to relocate with your child or if an ex-spouse does not agree on the relocation, it is wise to seek the advice of an attorney who understands the law and its language and can assist in navigating the sometimes complex nature of custody cases.
It is never an easy decision to separate a child from one parent, and all efforts to keep children near both parents is always ideal. There are many factors which are considered before granting relocation rights to a parent which will remove them from immediate contact with their non-custodial parent.
Each custody case, just as each family involved, is unique. The same elements in one case may not apply to another, and there may be more elements needed that are not needed in another case. If a parent does dispute a relocation, several factors help the court to determine what outcome is in the best interest of the child.
If children are young, not established in school or community, it could be an easier transition for children to relocate. If a child is over the age of 13, they are more likely to possess the ability to voice reasoned and definite preferences to the court on which place they feel would be best for them. In any case, the child’s interests are the only concern of the court.
Because custody agreements and orders are subject to change, jurisdiction used to be an issue for courts and law enforcement when attempting to enforce violations of custody orders from another state or in determining if parental kidnapping had taken place.
Child custody falls under State Law which is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This Act provides uniformity in recognition of custody orders and the enforcement of those orders in interstate child custody. The UCCJEA facilitates cooperation between multi-state agencies. The laws of the State of New York comply with the UCCJEA and most all US States have now adopted the Act.
There are four elements to the UCCJEA which include the Parental Kidnapping Prevention Act (PKPA), a federal law. These elements are the foundation of the Act in regards to jurisdiction in child custody disputes.
1) Home State Priority
All states will defer to the child’s home state in jurisdiction over custody disputes.
2) Continuing Exclusive Jurisdiction
If one state (the child’s home state) has jurisdiction and the child is then established in a new state, the jurisdiction over the custody dispute transfers to the new state, even if one parent still resides in the original state.
3) Temporary Emergency Jurisdiction
The UCCJEA has provision for a temporary emergency jurisdiction that can become a permanent jurisdiction only if no other state or jurisdiction is known or if the known state refuses to take over jurisdiction.
4) Enforcement Of Custody And Visitation Orders
Any order in a custody case from a state that has jurisdiction will be enforced. If a parent relocates they register their order from their original state. If the order is not contested, it is treated as a domestic order in the new state, and all available means in the new state are allowed to enforce it.
If you are considering relocating with your child or you are the parent who is disputing the relocation of your child, the first thing you should do is contact an attorney who can advise you. Child custody laws are not easily navigated and the law regarding custody can often be confusing. State laws are subject to change with new legislation, what may have been legal last year may not be legal today.