Parents move from state to state. Sometimes, children are moved by parents wrongfully, creating interstate custody problems. The Uniform Child Custody Jurisdiction and Enforcement Act and the Hague Convention on Child Abduction can work together in those cases as a recent New York case shows. In New York, an appellate court recently reconciled the UCCJEA and Hague in the interstate custody case of Krymko v. Krymko. A husband and wife and child moved from Canada to New York. After about five months in New York, the mother took the child back to Canada without the father’s consent and she promptly filed for custody there. The father filed his own custody action in New York, applied for the return of the child under the Hague Convention, and instituted a Hague Convention case in Canada. The Canadian court ruled that the child had been “habitually resident” in New York on the day that she was taken back to Canada, and ordered that the mother return the child to New York. The mother brought the child back to New York but asked New York to dismiss the New York case because New York was not the “home state” of the child under the UCCJEA. I have written on custody issues before, and I will be speaking at the Marital & Family Law Review Course in January on the UCCJEA and the Hague. The Review Course is the premier advanced, continuing education opportunity for marital and family law attorneys in Florida.
The “home state” is generally defined under the UCCJEA as “the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding.The mother claimed that the child had been in New York for only five months before being taken back to Canada. The New York court held that, even if the time in New York was less than the required six months, the subsequent stay in Canada, was found by a Canadian court to be wrongful. Accordingly, the stay in Canada would be deemed to be a “period of temporary absence” within the meaning of the UCCJEA, which should be added to the prior period of five months so as to constitute the required six-month period. Additionally, the New York court noted that even if the six-month rule had not been satisfied, New York had initial custody jurisdiction because Canada declined the case. The case illustrates the interplay between the UCCJEA and the Hague Convention when dealing with interstate custody issues.