As a Long Island divorce attorney, I’ve seen that when planning a wedding, the last thing couples think of is how the location matters if they were to get divorced. Some couples may get married in New York State for the luxury of the Hamptons or the beautiful scenery upstate, but not live in New York. On the other hand, couples who have resided their entire lives in New York may decide to move out of state after their marriage. Years later, while residing in Massachusetts or Florida, that same couple may have a child and years after that, that same couple may decide that a divorce is the best option for them. While New York will have jurisdiction over the couple’s marital status because the marriage was performed in New York, that is not the only issue present in a divorce matter.
How Can My Child Support and Custody Matters Be Resolved in New York?
When you are discussing your pending divorce with your Long Island Divorce Attorney, it is important to inform him or her whether or not you have children with your partner, and more importantly where these children reside if they do not reside within New York State. Section 76 of New York’s Domestic Relations Law provides that New York may only make a determination of child custody if New York is the child’s home state on the date the action is commenced or “was the home state of the child within six months before the commencement of the proceeding and the child is absent from th[e] state but a parent or person acting as a parent continues to live in the state.”
Additionally, the Domestic Relations Law provides that New York may be able to exercise jurisdiction over an unemancipated child if no other state has jurisdiction over the child, or the home state of the child declines to exercise such jurisdiction upon the belief that New York is the more appropriate forum. If the child’s home state declines to exercise jurisdiction, such refusal must be grounded in the belief that the child and the child’s parents have a significant connection with New York aside from their physical presence, there must be substantial evidence in the state concerning the child’s care, protection, and personal relationships, and all courts which could exercise jurisdiction over the child have declined to do so.
What Does “Home State” Mean?
A common question parents have for their Long Island Divorce Attorney is “What does it mean for New York to be my child’s home state?” Thankfully, the New York legislature realized parents would have this question, and set forth an exact definition in the statute. A child’s home state is the state in which he or she resided with a parent or person acting as a parent for “at least six consecutive months immediately before the commencement of the child custody proceeding.” Domestic Relations Law § 75-a(7). Because the statute is very specific, it is clear that it is not sufficient that your child resided in New York sporadically throughout his or her life for a period totaling six months. But what about your three month old? The home state of a child under six months old is “the state in which the child lived from birth with any of the persons mentioned.” Id.
Although the statute permits New York to exercise jurisdiction over a child who resides within the state on the date of the commencement of the proceeding, Valentin v. Valentin demonstrates how the Second Department is inclined to look to where the child resided in the months immediately preceding the filing. Valentin v. Valentin, 167 A.D.2d 390 (2d Dep’t 1990). In that instance, the child resided in California with the mother “from about November 1987 to August 1988 when the child was taken to New York by the  husband.” Id. at 391. The husband thereafter filed for divorce and demand for child custody in New York, alleging the New York courts could resolve issues of custody because the child was residing in the state on the commencement date. However, because the child had resided in California for nine months prior, California was deemed the child’s home state even though the child was now in New York. In other words, “New York cannot assume jurisdiction over  custody [issues] pursuant to Domestic Relations Law §75-d(1)(b),  if the child has a ‘home state’ other than New York. Id.
What Does This Mean for Me?
As always, your Long Island Divorce Attorney will provide you with the best advice in this area. But as long as you are aware that the most important thing for getting your child custody case into court is where your child has resided for the last six months, you are on a good path to begin.
Questions About Child Custody and Visitation on Long Island?
To learn more about what you need to know about Child Custody on Long Island, visit this page on Child Custody or contact us at 631-923-1910 for a complimentary consultation.
Long Island Divorce Attorney Can Answer Your Questions About Child Custody
Have questions about Child Custody on Long Island? The compassionate and experienced Long Island Divorce Attorneys at Robert E. Hornberger, Esq., PC are here to help. We have a long and successful history of representing couples and individuals in Nassau and Suffolk County in their Child Support and Custody matters. Contact us at 631-923-1910 for a complimentary divorce consultation, or fill out the form on this page and we’ll get right back to you.