ARTICLE 5-A: Uniform Child Custody Jurisdiction Act
(provided by Divorce Source, Inc.)
Published 6.5.98
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Sec. 75-g. Simultaneous proceedings in other states.
1. A
court of this state shall not exercise its jurisdiction under
this article if at the time of filing the petition a proceeding
concerning the custody of the child was pending in a court of
another state exercising jurisdiction substantially in conformity
with this article, unless the proceeding is stayed by the court
of the other state because this state is a more appropriate forum
or for other reasons.
2. Before hearing the petition in a custody proceeding the
court shall examine the pleadings and other information supplied
by the parties under section seventy-five-j of this article. If
the court has reason to believe that proceedings may be pending
in another state it shall direct an inquiry to the state court
administrator or other appropriate official of the other state.
3. If the court is informed during the course of the
proceeding that a proceeding concerning the custody of the child
was pending in another state before the court assumed
jurisdiction it shall stay the proceeding and communicate with
the court in which the other proceeding is pending to the end
that the issue may be litigated in the more appropriate forum and
that information be exchanged in accordance with sections
seventy-five-s through seventy-five-v of this article. If a
court of this state has made a custody decree before being
informed of a pending proceeding in a court of another state, it
shall immediately inform that court of the fact. If the court is
informed that a proceeding was commenced in another state after
it assumed jurisdiction, it shall likewise inform the other court
to the end that the issues may be litigated in the more
appropriate forum.
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Sec. 75-h. Inconvenient forum.
1. A court which has
jurisdiction under this article to make an initial or
modification decree may decline to exercise its jurisdiction any
time before making a decree if it finds that it is an
inconvenient forum to make a custody determination under the
circumstances of the case and that a court of another state is a
more appropriate forum.
2. A finding of inconvenient forum may be made upon the
court`s own motion or upon motion of a party or a guardian ad
litem or other representative of the child.
3. In determining if it is an inconvenient forum, the court
shall consider if it is in the interest of the child that another
state assume jurisdiction. For this purpose it may take into
account the following factors, among others, whether:
(a) another state is or recently was the child`s home state;
4. Before determining whether to decline or retain
jurisdiction the court may communicate with a court of another
state and exchange information pertinent to the assumption of
jurisdiction by either court with a view to assuring that
jurisdiction will be exercised by the more appropriate court and
that a forum will be available to the parties.
(b) another state has a closer connection with the child and
his family or with the child and one or more of the contestants;
(c) substantial evidence concerning the child`s present or
future care, protection, training, and personal relationships is
more readily available in another state;
(d) the parties have agreed on another forum which is no less
appropriate; and
(e) the exercise of jurisdiction by a court of this state
would contravene any of the purposes stated in section
seventy-five-b of this article.
5. If the court finds that it is an inconvenient forum and
that a court of another state is a more appropriate forum, it may
dismiss the proceedings, or it may stay the proceedings upon
condition that a custody proceeding be promptly commenced in
another named state or upon any other conditions which may be
just and proper, including the condition that a moving party
stipulate his consent and submission to the jurisdiction of the
other forum.
6. Where the court has jurisdiction of an action or
proceeding brought to annul a marriage or to declare the nullity
of a void marriage or for a separation or for a divorce, the
court may decline to exercise jurisdiction of an application for
a custody determination made therein while retaining jurisdiction
of the matrimonial action.
7. If it appears to the court that it is clearly an
inappropriate forum it may require the party who commenced the
proceedings to pay, in addition to the costs of the proceedings
in this state, necessary travel and other expenses, including
attorneys` fees, incurred by other parties or their witnesses.
Payment shall be made to the clerk of the court for remittance to
the proper party.
8. Upon dismissal or stay of proceedings under this section
the court shall inform the court found to be the more appropriate
forum of such dismissal or stay, or if the court which would have
jurisdiction in the other state is not certainly known, shall
transmit the information to the court administrator or other
appropriate official for forwarding to the appropriate court.
9. Any communication received from another state to the
effect that its courts have made a finding of inconvenient forum
because a court of this state is the more appropriate forum shall
be filed with the clerk of the appropriate court. Upon assuming
jurisdiction the court of this state shall inform the original
court of this fact.
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Sec. 75-i. Jurisdiction declined because of conduct.
1. If
the petitioner for an initial decree has wrongfully taken the
child from another state or has engaged in similar reprehensible
conduct the court may decline to exercise jurisdiction if this is
just and proper under the circumstances.
2. Unless required in the interest of the child, the court
shall not exercise its jurisdiction to modify a custody decree of
another state if the petitioner, without consent of the person
entitled to custody, has improperly removed the child from the
physical custody of the person entitled to custody or has
improperly retained the child after a visit or other temporary
relinquishment of physical custody. If the petitioner has
violated any other provision of a custody decree of another state
the court may decline to exercise its jurisdiction if this is
just and proper under the circumstances.
3. In appropriate cases a court dismissing a petition under
this section may charge the petitioner with necessary travel and
other expenses, including attorneys` fees, incurred by other
parties or their witnesses.
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Sec. 75-j. Pleadings and affidavits; duty to inform court.
1. Except as
provided in subdivisions four and five of this section, every party to
a custody proceeding shall, in his or her first pleading or in an
affidavit attached to that pleading, give information under oath as to
the child`s present address, the places where the child has lived
within the last five years, and the names and present addresses of the
persons with whom the child has lived during that period. In this
pleading or affidavit every party shall further declare under oath
whether he or she:
(a) has participated as a party, witness, or in any other capacity
in any other litigation concerning the custody of the same child in
this or any other state;
2. If the declaration as to any of the above items is in the
affirmative the declarant shall give additional information under oath
as required by the court. The court may examine the parties under
oath as to details of the information furnished and as to other
matters pertinent to the court`s jurisdiction and the disposition of
the case.
(b) has information of any custody proceeding concerning the child
pending in a court of this or any other state; and
(c) knows of any person not a party to the proceedings who has
physical custody of the child or claims to have custody or visitation
rights with respect to the child.
3. If, during the pendency of a custody proceeding, any party learns
of another custody proceeding concerning the child in this or another
state, he shall immediately inform the court of this fact.
4. In an action for divorce or separation, or to annul a marriage or
declare the nullity of a void marriage,
(a) where neither party is in
default in appearance or pleading and the issue of custody is
uncontested, the affidavit required by this section need not be
submitted. In any other such action, such affidavit shall be submitted
by the parties within twenty days after joinder of issue on the
question of custody, or at the time application for a default judgment
is made.
5. Notwithstanding any other provision of law, in any custody
proceeding, the court shall waive disclosure of the present or a prior
address of the child or a party when such relief is necessary for the
physical or emotional safety of a child or a party. Application for
an order waiving disclosure of the present or a prior address of the
child or a party shall be on notice to all other parties, who shall
have an opportunity to be heard. Provided, however, that in no case
shall the address of a residential program for victims of domestic
violence, as defined in subdivision four of section four hundred
fifty-nine-a of the social services law, be disclosed.
(b) Notwithstanding any other provision of law, if the party seeking
custody of the child has resided or resides in a residential program
for victims of domestic violence as defined in subdivision four of
section four hundred fifty-nine-a of the social services law, the
present address of the child and the present address of the party
seeking custody and the address of the residential program for victims
of domestic violence shall not be revealed.
(c) Notwithstanding any other provision of law, the court shall
waive disclosure of the present and all prior addresses of the child
or a party upon notice to the adverse party when such relief is
necessary for the physical or emotional safety of a child or a party.
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Sec. 75-k. Additional parties. If the court learns from
information furnished by the parties pursuant to section
seventy-five-j of this article, or from other sources that a
person not a party to the custody proceeding has physical custody
of the child or claims to have custody or visitation rights with
respect to the child, it shall order that person to be joined as
a party and to be duly notified of the pendency of the proceeding
and of his joinder as a party. If the person joined as a party
is outside this state he shall be served with process or
otherwise notified in accordance with section seventy-five-f of
this article.
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Sec. 75-l. Appearance of parties and the child.
1. The
court may order any party to the proceeding who is in the state
to appear personally before the court. If that party has
physical custody of the child the court may order that he appear
personally with the child.
2. If a party to the proceeding whose presence is desired by
the court is outside the state with or without the child the
court may order that the notice given under section
seventy-five-f of this article include a statement directing that
party to appear personally with or without the child and
declaring that failure to appear may result in a decision adverse
to that party.
3. If a party to the proceeding who is outside the state is
directed to appear under subdivision two or desires to appear
personally before the court with or without the child, the court
may require another party to pay to the clerk of the court travel
and other necessary expenses of the party so appearing and of the
child if this is just and proper under the circumstances.
Copyright© 1996. All rights reserved by Divorce Source, Inc.