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Where Can You File a Petition to Modify a Custody Order?

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Can you file for a custody modification in your home state, even when your ex-spouse and child have relocated to another state? In a recent Second Department Case, the court was presented with this question. A mother filed a petition in Queens Family Court to modify the existing custody order which granted the father sole custody of their daughter. The father filed a motion to dismiss, claiming that the Queens Family Court did not have jurisdiction because he and his daughter had moved to Connecticut eight months earlier. The Queens Family Court granted father’s motion to dismiss and mother appealed.


In determining if the Queens Family Court had jurisdiction to hear the case, the Second Department looked to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). UCCJEA states that, “a court in this State that has made an initial custody determination has exclusive continuing jurisdiction over that determination until it finds that the child does not have a ‘significant connection’ with New York, and ‘substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships.’”


Considering the standard set forth above, the Second Department concluded that although the child no longer lived in New York, she still retained a ‘significant connection’ to the state because she had frequent visitation with her mother in New York and sometimes attended school there. Although the child had a ‘significant connection’ with Connecticut as well, this does not diminish her ‘significant connection’ with New York.


Recognizing the nature and location of the relevant evidence, the applicable statutory factors, and Queens Family Court’s familiarity with the facts and issues in the case, the court decided New York would be a more convenient forum. Thus, the Queens Family Court’s dismissal of the modification petition was erroneous and the mother was entitled to a new hearing.


Relocation after a divorce can create many legal issues regarding jurisdiction and custody modifications. Are you a divorced parent considering relocation or is your ex-spouse trying to move with your children? Have you or your ex-spouse already moved and now you are confused as to which court to file a modification in? If you have specific questions regarding your custody agreement and would like to speak to a respected and experienced Long Island Divorce Attorney, contact the offices of Jay D. Raxenberg. Call (516) 491-0565 or toll free at (888) 543-4867.

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