New York Divorce Laws
ARTICLE 10
ACTION FOR DIVORCE
Section 170. Action for divorce.
170-a. Special action.
171. When divorce denied, although adultery proved.
172. Co-respondent as party.
173. Jury trial.
175. Legitimacy of children.
§ 170. Action for divorce. An action for divorce may be maintained by
a husband or wife to procure a judgment divorcing the parties and
dissolving the marriage on any of the following grounds:
(1) The cruel and inhuman treatment of the plaintiff by the defendant
such that the conduct of the defendant so endangers the physical or
mental well being of the plaintiff as renders it unsafe or improper for
the plaintiff to cohabit with the defendant.
(2) The abandonment of the plaintiff by the defendant for a period of
one or more years.
(3) The confinement of the defendant in prison for a period of three
or more consecutive years after the marriage of plaintiff and defendant.
(4) The commission of an act of adultery, provided that adultery for
the purposes of articles ten, eleven, and eleven-A of this chapter, is
hereby defined as the commission of an act of sexual intercourse, oral
sexual conduct or anal sexual conduct, voluntarily performed by the
defendant, with a person other than the plaintiff after the marriage of
plaintiff and defendant. Oral sexual conduct and anal sexual conduct
include, but are not limited to, sexual conduct as defined in
subdivision two of section 130.00 and subdivision three of section
130.20 of the penal law.
(5) The husband and wife have lived apart pursuant to a decree or
judgment of separation for a period of one or more years after the
granting of such decree or judgment, and satisfactory proof has been
submitted by the plaintiff that he or she has substantially performed
all the terms and conditions of such decree or judgment.
(6) The husband and wife have lived separate and apart pursuant to a
written agreement of separation, subscribed by the parties thereto and
acknowledged or proved in the form required to entitle a deed to be
recorded, for a period of one or more years after the execution of such
agreement and satisfactory proof has been submitted by the plaintiff
that he or she has substantially performed all the terms and conditions
of such agreement. Such agreement shall be filed in the office of the
clerk of the county wherein either party resides. In lieu of filing such
agreement, either party to such agreement may file a memorandum of such
agreement, which memorandum shall be similarly subscribed and
acknowledged or proved as was the agreement of separation and shall
contain the following information: (a) the names and addresses of each
of the parties, (b) the date of marriage of the parties, (c) the date of
the agreement of separation and (d) the date of this subscription and
acknowledgment or proof of such agreement of separation.
§ 170-a. Special action. a. A spouse against whom a decree of divorce
has been obtained under the provisions of subdivision five or six of
section one hundred seventy of this chapter, where the decree, judgment
or agreement of separation was obtained or entered into prior to January
twenty-first, nineteen hundred seventy, may institute an action in which
there shall be recoverable, in addition to any rights under this or any
other provisions of law, an amount equivalent to the value of any
economic and property rights of which the spouse was deprived by virtue
of such decree, except where the grounds for the separation judgment
would have excluded recovery of economic and property rights.
b. In determining the value of the economic and property rights
described in subdivision a hereof, the plaintiff's interest shall be
calculated as though the defendant died intestate and as if the death of
the defendant had immediately antedated the divorce.
c. If the defendant shall establish that intervening circumstances
have rendered an award described in subdivision a hereof inequitable,
the court may award to the plaintiff such portion of such economic and
property rights as justice may require.
d. If the defendant shall establish that the plaintiff has expressly
or impliedly waived all or some portion of the aforesaid economic or
property rights, the court shall deny recovery of all such rights, or
deny recovery of the portion of such rights as justice may require.
e. Actions under this subdivision may be brought:
(i) Within two years of the enactment of this section, or
(ii) Within two years of the obtainment of the subject divorce,
whichever is later.
§ 171. When divorce denied, although adultery proved. In either of the
following cases, the plaintiff is not entitled to a divorce, although
the adultery is established:
1. Where the offense was committed by the procurement or with the
connivance of the plaintiff.
2. Where the offense charged has been forgiven by the plaintiff. The
forgiveness may be proven, either affirmatively, or by the voluntary
cohabitation of the parties with the knowledge of the fact.
3. Where there has been no express forgiveness, and no voluntary
cohabitation of the parties, but the action was not commenced within
five years after the discovery by the plaintiff of the offense charged.
4. Where the plaintiff has also been guilty of adultery under such
circumstances that the defendant would have been entitled, if innocent,
to a divorce.
§ 172. Co-respondent as party. 1. In an action brought to obtain a
divorce on the ground of adultery the plaintiff or defendant may serve a
copy of his pleading on a co-respondent named therein. At any time
within twenty days after such service, the co-respondent may appear to
defend such action so far as the issues affect him. If no such service
be made, then at any time before the entry of judgment a co-respondent
named in any of the pleadings may make a written demand on any party for
a copy of a summons and a pleading served by such party, which must be
served within ten days thereafter, and he may appear to defend such
action so far as the issues affect him.
2. In an action for divorce where a co-respondent has appeared and
defended, in case no one of the allegations of adultery controverted by
such co-respondent shall be proven, such co-respondent shall be entitled
to a bill of costs against the person naming him as such co-respondent,
which bill of costs shall consist only of the sum now allowed by law as
a trial fee, and disbursements.
§ 173. Jury trial. In an action for divorce there is a right to trial
by jury of the issues of the grounds for granting the divorce.
§ 175. Legitimacy of children. 1. Where the action for divorce is
brought by the wife, the legitimacy of any child of the parties, born or
begotten before the commencement of the action, is not affected by the
judgment dissolving the marriage.
2. Where the action for divorce is brought by the husband, the
legitimacy of a child born or begotten before the commission of the
offense charged is not affected by a judgment dissolving the marriage;
but the legitimacy of any other child of the wife may be determined as
one of the issues in the action. In the absence of proof to the
contrary, the legitimacy of all the children begotten before the
commencement of the action must be presumed.
ARTICLE 5-A
UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT
Title I. General provisions.
II. Jurisdiction.
III. Enforcement.
IV. Miscellaneous provisions.
TITLE I
GENERAL PROVISIONS
Section 75. Short title and statement of legislative intent.
75-a. Definitions.
75-b. Proceedings governed by other laws.
75-c. Application to Indian tribes.
75-d. International application of article.
75-e. Effect of child custody determination.
75-f. Priority.
75-g. Notice to persons outside state.
75-h. Appearance and limited immunity.
75-i. Communication between courts.
75-j. Taking testimony in another state.
75-k. Cooperation between courts; preservation of records.
75-l. Military service by parent; effect on child custody orders
pursuant to this article.
§ 75. Short title and statement of legislative intent. 1. This article
may be cited as the "uniform child custody jurisdiction and enforcement
act".
2. It is the intent of the legislature in enacting this article to
provide an effective mechanism to obtain and enforce orders of custody
and visitation across state lines and to do so in a manner that ensures
that the safety of the children is paramount and that victims of
domestic violence and child abuse are protected. It is further the
intent of the legislature that this article be construed so as to ensure
that custody and visitation by perpetrators of domestic violence or
homicide of a parent, legal custodian, legal guardian, sibling,
half-sibling or step-sibling of a child is restricted pursuant to
subdivision one-c of section two hundred forty of this chapter and
section one thousand eighty-five of the family court act.
§ 75-a. Definitions. In this article:
1. "Abandoned" means left without provision for reasonable and
necessary care or supervision.
2. "Child" means an individual who has not attained eighteen years of
age.
3. "Child custody determination" means a judgment, decree, or other
order of a court providing for the legal custody, physical custody, or
visitation with respect to a child. The term includes a permanent,
temporary, initial, and modification order. The term does not include an
order relating to child support or other monetary obligation of an
individual.
4. "Child custody proceeding" means a proceeding in which legal
custody, physical custody, or visitation with respect to a child is an
issue. The term includes a proceeding for divorce, separation, neglect,
abuse, dependency, guardianship, paternity, termination of parental
rights, and protection from domestic violence, in which the issue may
appear. The term does not include a proceeding involving juvenile
delinquency, person in need of supervision, contractual emancipation, or
enforcement under title three of this article.
5. "Commencement" means the filing of the first pleading in a
proceeding.
6. "Court" means an entity authorized under the law of a state to
establish, enforce, or modify a child custody determination.
7. "Home state" means the state in which a child lived with a parent
or a person acting as a parent for at least six consecutive months
immediately before the commencement of a child custody proceeding. In
the case of a child less than six months of age, the term means the
state in which the child lived from birth with any of the persons
mentioned. A period of temporary absence of any of the mentioned persons
is part of the period.
8. "Initial determination" means the first child custody determination
concerning a particular child.
9. "Issuing court" means the court that makes a child custody
determination for which enforcement is sought under this article.
10. "Issuing state" means the state in which a child custody
determination is made.
11. "Modification" means a child custody determination that changes,
replaces, supersedes, or is otherwise made after a previous
determination concerning the same child, whether or not it is made by
the court that made the previous determination.
12. "Person" means an individual, corporation, business trust, estate,
trust, partnership, limited liability company, association, joint
venture, government, governmental subdivision, agency or
instrumentality, public corporation or any other legal or commercial
entity.
13. "Person acting as a parent" means a person, other than a parent,
who:
(a) has physical custody of the child or has had physical custody for
a period of six consecutive months, including any temporary absence,
within one year immediately before the commencement of a child custody
proceeding; and
(b) has been awarded legal custody by a court or claims a right to
legal custody under the law of this state.
14. "Physical custody" means the physical care and supervision of a
child.
15. "State" means a state of the United States, the District of
Columbia, Puerto Rico, the United States Virgin Islands, or any
territory or insular possession subject to the jurisdiction of the
United States.
16. "Tribe" means an Indian tribe or band, or Alaskan Native village,
which is recognized by federal law or formally acknowledged by a state.
17. "Warrant" means an order issued by a court authorizing law
enforcement officers to take physical custody of a child.
18. "Law enforcement officer" means a police officer as defined in
subdivision thirty-four of section 1.20 of the criminal procedure law.
§ 75-b. Proceedings governed by other laws. This article does not
govern an adoption proceeding or a proceeding pertaining to the
authorization of emergency medical care for a child.
§ 75-c. Application to Indian tribes. 1. A child custody proceeding
that pertains to an Indian child as defined in the Indian Child Welfare
Act, 25 U.S.C. § 1901 et seq., is not subject to this article to the
extent that it is governed by the Indian Child Welfare Act.
2. A court of this state shall treat a tribe as if it were a state of
the United States for the purpose of applying this title and title two
of this article.
3. A child custody determination made by a tribe under factual
circumstances in substantial conformity with the jurisdictional
standards of this article must be recognized and enforced under title
three of this article.
§ 75-d. International application of article. 1. A court of this state
shall treat a foreign country as if it were a state of the United States
for the purpose of applying this title and title two of this article.
2. Except as otherwise provided in subdivision three of this section,
a child custody determination made in a foreign country under factual
circumstances in substantial conformity with the jurisdictional
standards of this article must be recognized and enforced under title
three of this article.
3. A court of this state need not apply this article if the child
custody law of a foreign country as written or as applied violates
fundamental principles of human rights.
§ 75-e. Effect of child custody determination. A child custody
determination made by a court of this state that had jurisdiction under
this article binds all persons who have been served in accordance with
the laws of this state or notified in accordance with section
seventy-five-g of this title or who have submitted to the jurisdiction
of the court, and who have been given an opportunity to be heard. As to
those persons, the determination is conclusive as to all decided issues
of law and fact except to the extent the determination is modified or
except to the extent that enforcement of an order would violate
subdivision one-c of section two hundred forty of this chapter or
section one thousand eighty-five of the family court act.
§ 75-f. Priority. If a question of existence or exercise of
jurisdiction under this article is raised in a child custody proceeding,
the question, upon request of a party, child or law guardian must be
given priority on the calendar and handled expeditiously.
§ 75-g. Notice to persons outside state. 1. Notice required for the
exercise of jurisdiction when a person is outside this state shall be
given in a manner prescribed by the law of this state for service of
process, as provided in paragraph (a), (b) or (c) of this subdivision,
or by the law of the state in which the service is made, as provided in
paragraph (d) of this subdivision. Notice must be given in a manner
reasonably calculated to give actual notice. If a person cannot be
served with notice within the state, the court shall require that such
person be served in a manner reasonably calculated to give actual
notice, as follows:
(a) by personal delivery outside the state in the manner prescribed by
section three hundred thirteen of the civil practice law and rules; or
(b) by any form of mail requesting a receipt; or
(c) in such manner as the court, upon motion, directs, including
publication, if service is impracticable under paragraph (a) or (b) of
this subdivision; or
(d) in such manner as prescribed by the law of the state in which
service is made.
2. Proof of service outside the state shall be by affidavit of the
individual who made the service, or in the manner prescribed by the
order pursuant to which service is made. If service is made by mail,
proof may be by a receipt signed by the addressee or other evidence of
delivery to the addressee. Proof of service may also be in the manner
prescribed by the law of the state in which the service is made.
3. Notice is not required for the exercise of jurisdiction with
respect to a person who submits to the jurisdiction of the court.
§ 75-h. Appearance and limited immunity. 1. A party to a child custody
proceeding, including a modification proceeding, or a petitioner or
respondent in a proceeding to enforce or register a child custody
determination, is not subject to personal jurisdiction in this state for
another proceeding or purpose solely by reason of having participated,
or of having been physically present for the purpose of participating,
in the proceeding.
2. A person who is subject to personal jurisdiction in this state on a
basis other than physical presence is not immune from service of process
in this state. A party present in this state who is subject to the
jurisdiction of another state is not immune from service of process
allowable under the laws of that state.
3. The immunity granted by subdivision one of this section does not
extend to civil litigation based on acts unrelated to the participation
in a proceeding under this article committed by an individual while
present in this state.
§ 75-i. Communication between courts. 1. A court of this state may
communicate and, pursuant to subdivision four of section seventy-six-c,
subdivision two of section seventy-six-e and section seventy-seven-f of
this article, must communicate, with a court in another state concerning
a proceeding arising under this article.
2. The court may allow the parties to participate in the
communication. If the parties are not able to participate in the
communication, they must be given the opportunity to present facts and
legal arguments before a decision on jurisdiction is made.
3. Communication between courts on schedules, calendars, court
records, and similar matters may occur without informing the parties. A
record need not be made of the communication.
4. Except as otherwise provided in subdivision three of this section,
a record must be made of a communication under this section. The parties
must be informed promptly of the communication and granted access to the
record.
5. For the purposes of this section, "record" means information that
is inscribed on a tangible medium or that is stored in an electronic or
other medium and is retrievable in perceivable form.
§ 75-j. Taking testimony in another state. 1. In addition to other
procedures available to a party, a party to a child custody proceeding
may offer testimony of witnesses who are located in another state,
including testimony of the parties and the child, by deposition or other
means allowable in this state for testimony taken in another state. The
court on its own motion may order that the testimony of a person be
taken in another state and may prescribe the manner in which and the
terms upon which the testimony is taken.
2. A court of this state may permit an individual residing in another
state to be deposed or to testify by telephone, audiovisual means, or
other electronic means before a designated court or at another location
in that state. A court of this state shall cooperate with courts of
other states in designating an appropriate location for the deposition
or testimony and the procedures to be followed by the persons taking
such deposition or testimony. Any such testimony or deposition shall be
recorded and preserved for transcription.
3. Documentary evidence transmitted from another state to a court of
this state by technological means that do not produce an original
writing may not be excluded from evidence on an objection based on the
means of transmission.
§ 75-k. Cooperation between courts; preservation of records. 1. A
court of this state may request the appropriate court of another state
to:
(a) hold an evidentiary hearing;
(b) order a person to produce or give evidence pursuant to procedures
of that state;
(c) order that an evaluation be made with respect to the custody of a
child involved in a pending proceeding;
(d) forward to the court of this state a certified copy of the
transcript of the record of the hearing, the evidence otherwise
presented, and any evaluation prepared in compliance with the request;
and
(e) order a party to a child custody proceeding or any person having
physical custody of the child to appear in the proceeding with or
without the child.
2. Upon the request of a court of another state, a court of this state
may hold a hearing or enter an order described in subdivision one of
this section.
3. Travel and other necessary and reasonable expenses incurred under
subdivisions one and two of this section may be assessed against the
parties according to the law of this state.
4. A court of this state shall preserve the pleadings, orders,
decrees, records of hearings, evaluations, and other pertinent records
with respect to a child custody proceeding at least until the child
attains eighteen years of age. Upon appropriate request by a court or
law enforcement official of another state, the court shall forward a
certified copy of those records.
§ 75-l. Military service by parent; effect on child custody orders
pursuant to this article. 1. During the period of time that a parent is
activated, deployed or temporarily assigned to military service, such
that the parent's ability to continue as a joint caretaker or the
primary caretaker of a minor child is materially affected by such
military service, any orders issued pursuant to this article, based on
the fact that the parent is activated, deployed or temporarily assigned
to military service, which would materially affect or change a previous
judgment or order regarding custody of that parent's child or children
as such judgment or order existed on the date the parent was activated,
deployed, or temporarily assigned to military service shall be subject
to review pursuant to subdivision three of this section. Any relevant
provisions of the Service Member's Civil Relief Act shall apply to all
proceedings governed by this section.
2. During such period the court may enter an order to modify custody
if there is clear and convincing evidence that the modification is in
the best interests of the child. An attorney for the child shall be
appointed in all cases where a modification is sought during such
military service. Such order shall be subject to review pursuant to
subdivision three of this section. When entering an order under this
section, the court shall consider and provide for, if feasible and if in
the best interests of the child, contact between the military service
member and his or her child including, but not limited to, electronic
communication by e-mail, webcam, telephone, or other available means.
During the period of the parent's leave from military service, the court
shall consider the best interests of the child when establishing a
parenting schedule, including visiting and other contact. For such
purpose, a "leave from service" shall be a period of not more than three
months.
3. Unless the parties have otherwise stipulated or agreed, if an order
is issued under this section, the return of the parent from active
military service, deployment or temporary assignment shall be considered
a substantial change in circumstances. Upon the request of either
parent, the court shall determine on the basis of the child's best
interests whether the custody judgment or order previously in effect
should be modified.
4. This section shall not apply to assignments to permanent duty
stations or permanent changes of station.
TITLE II
JURISDICTION
Section 76. Initial child custody jurisdiction.
76-a. Exclusive, continuing jurisdiction.
76-b. Jurisdiction to modify determination.
76-c. Temporary emergency jurisdiction.
76-d. Notice; opportunity to be heard; joinder.
76-e. Simultaneous proceedings.
76-f. Inconvenient forum.
76-g. Jurisdiction declined by reason of conduct.
76-h. Information to be submitted to court.
76-i. Appearance of parties and child.
§ 76. Initial child custody jurisdiction. 1. Except as otherwise
provided in section seventy-six-c of this title, a court of this state
has jurisdiction to make an initial child custody determination only if:
(a) this state is the home state of the child on the date of the
commencement of the proceeding, or was the home state of the child
within six months before the commencement of the proceeding and the
child is absent from this state but a parent or person acting as a
parent continues to live in this state;
(b) a court of another state does not have jurisdiction under
paragraph (a) of this subdivision, or a court of the home state of the
child has declined to exercise jurisdiction on the ground that this
state is the more appropriate forum under section seventy-six-f or
seventy-six-g of this title, and:
(i) the child and the child's parents, or the child and at least one
parent or a person acting as a parent, have a significant connection
with this state other than mere physical presence; and
(ii) substantial evidence is available in this state concerning the
child's care, protection, training, and personal relationships;
(c) all courts having jurisdiction under paragraph (a) or (b) of this
subdivision have declined to exercise jurisdiction on the ground that a
court of this state is the more appropriate forum to determine the
custody of the child under section seventy-six-f or seventy-six-g of
this title; or
(d) no court of any other state would have jurisdiction under the
criteria specified in paragraph (a), (b) or (c) of this subdivision.
2. Subdivision one of this section is the exclusive jurisdictional
basis for making a child custody determination by a court of this state.
3. Physical presence of, or personal jurisdiction over, a party or a
child is not necessary or sufficient to make a child custody
determination.
§ 76-a. Exclusive, continuing jurisdiction. 1. Except as otherwise
provided in section seventy-six-c of this title, a court of this state
which has made a child custody determination consistent with section
seventy-six or seventy-six-b of this title has exclusive, continuing
jurisdiction over the determination until:
(a) a court of this state determines that neither the child, the child
and one parent, nor the child and a person acting as a parent have a
significant connection with this state and that substantial evidence is
no longer available in this state concerning the child's care,
protection, training, and personal relationships; or
(b) a court of this state or a court of another state determines that
the child, the child's parents, and any person acting as a parent do not
presently reside in this state.
2. A court of this state which has made a child custody determination
and does not have exclusive, continuing jurisdiction under this section
may modify that determination only if it has jurisdiction to make an
initial determination under section seventy-six of this title.
§ 76-b. Jurisdiction to modify determination. Except as otherwise
provided in section seventy-six-c of this title, a court of this state
may not modify a child custody determination made by a court of another
state unless a court of this state has jurisdiction to make an initial
determination under paragraph (a) or (b) of subdivision one of section
seventy-six of this title and:
1. The court of the other state determines it no longer has exclusive,
continuing jurisdiction under section seventy-six-a of this title or
that a court of this state would be a more convenient forum under
section seventy-six-f of this title; or
2. A court of this state or a court of the other state determines that
the child, the child's parents, and any person acting as a parent do not
presently reside in the other state.
§ 76-c. Temporary emergency jurisdiction. 1. A court of this state has
temporary emergency jurisdiction if the child is present in this state
and the child has been abandoned or it is necessary in an emergency to
protect the child, a sibling or parent of the child.
2. If there is no previous child custody determination that is
entitled to be enforced under this article and a child custody
proceeding has not been commenced in a court of a state having
jurisdiction under sections seventy-six through seventy-six-b of this
title, a child custody determination made under this section remains in
effect until an order is obtained from a court of a state having
jurisdiction under sections seventy-six through seventy-six-b of this
title. Where the child who is the subject of a child custody
determination under this section is in imminent risk of harm, any order
issued under this section shall remain in effect until a court of a
state having jurisdiction under sections seventy-six through
seventy-six-b of this title has taken steps to assure the protection of
the child. If a child custody proceeding has not been or is not
commenced in a court of a state having jurisdiction under sections
seventy-six through seventy-six-b of this title, a child custody
determination made under this section becomes a final determination, if
it so provides and this state becomes the home state of the child.
3. If there is a previous child custody determination that is entitled
to be enforced under this article, or a child custody proceeding has
been commenced in a court of a state having jurisdiction under sections
seventy-six through seventy-six-b of this title, any order issued by a
court of this state under this section must specify in the order a
period that the court considers adequate to allow the person seeking an
order to obtain an order from the state having jurisdiction under
sections seventy-six through seventy-six-b of this title. The order
issued in this state remains in effect until an order is obtained from
the other state within the period specified or the period expires,
provided, however, that where the child who is the subject of a child
custody determination under this section is in imminent risk of harm,
any order issued under this section shall remain in effect until a court
of a state having jurisdiction under sections seventy-six through
seventy-six-b of this title has taken steps to assure the protection of
the child.
4. A court of this state which has been asked to make a child custody
determination under this section, upon being informed that a child
custody proceeding has been commenced in, or a child custody
determination has been made by, a court of a state having jurisdiction
under sections seventy-six through seventy-six-b of this title, shall
immediately communicate with the other court. A court of this state
which is exercising jurisdiction pursuant to sections seventy-six
through seventy-six-b of this title, upon being informed that a child
custody proceeding has been commenced in, or a child custody
determination has been made by, a court of another state under a statute
similar to this section shall immediately communicate with the court of
that state to resolve the emergency, protect the safety of the parties
and the child, and determine a period for the duration of the temporary
order.
§ 76-d. Notice; opportunity to be heard; joinder. 1. Before a child
custody determination is made under this article, notice and an
opportunity to be heard in accordance with the standards of section
seventy-five-g of this article must be given to all persons entitled to
notice under the law of this state as in child custody proceedings
between residents of this state, any parent whose parental rights have
not been previously terminated, and any person having physical custody
of the child.
2. This article does not govern the enforceability of a child custody
determination made without notice or an opportunity to be heard.
3. The obligation to join a party and the right to intervene as a
party in a child custody proceeding under this article are governed by
the laws of this state as in child custody proceedings between residents
of this state.
§ 76-e. Simultaneous proceedings. 1. Except as otherwise provided in
section seventy-six-c of this title, a court of this state may not
exercise its jurisdiction under this title if, at the time of the
commencement of the proceeding, a proceeding concerning the custody of
the child has been commenced in a court of another state having
jurisdiction substantially in conformity with this article, unless the
proceeding has been terminated or is stayed by the court of the other
state because a court of this state is a more convenient forum under
section seventy-six-f of this title.
2. Except as otherwise provided in section seventy-six-c of this
title, a court of this state, before hearing a child custody proceeding,
shall examine the court documents and other information supplied by the
parties pursuant to section seventy-six-h of this title. If the court
determines that a child custody proceeding has been commenced in a court
in another state having jurisdiction substantially in accordance with
this article, the court of this state shall stay its proceeding and
communicate with the court of the other state. If the court of the state
having jurisdiction substantially in accordance with this article does
not determine that the court of this state is a more appropriate forum,
the court of this state shall dismiss the proceeding.
3. In a proceeding to modify a child custody determination, a court of
this state shall determine whether a proceeding to enforce the
determination has been commenced in another state. If a proceeding to
enforce a child custody determination has been commenced in another
state, the court may:
(a) stay the proceeding for modification pending the entry of an order
of a court of the other state enforcing, staying, denying, or dismissing
the proceeding for enforcement:
(b) enjoin the parties from continuing with the proceeding for
enforcement; or
(c) proceed with the modification under conditions it considers
appropriate.
§ 76-f. Inconvenient forum. 1. A court of this state which has
jurisdiction under this article to make a child custody determination
may decline to exercise its jurisdiction at any time if it determines
that it is an inconvenient forum under the circumstances and that a
court of another state is a more appropriate forum. The issue of
inconvenient forum may be raised upon motion of a party, the child or
the law guardian, or upon the court's own motion, or request of another
court.
2. Before determining whether it is an inconvenient forum, a court of
this state shall consider whether it is appropriate for a court of
another state to exercise jurisdiction. For this purpose, the court
shall allow the parties to submit information and shall consider all
relevant factors, including:
(a) whether domestic violence or mistreatment or abuse of a child or
sibling has occurred and is likely to continue in the future and which
state could best protect the parties and the child;
(b) the length of time the child has resided outside this state;
(c) the distance between the court in this state and the court in the
state that would assume jurisdiction;
(d) the relative financial circumstances of the parties;
(e) any agreement of the parties as to which state should assume
jurisdiction;
(f) the nature and location of the evidence required to resolve the
pending litigation, including testimony of the child;
(g) the ability of the court of each state to decide the issue
expeditiously and the procedures necessary to present the evidence; and
(h) the familiarity of the court of each state with the facts and
issues in the pending litigation.
3. If a court of this state determines that it is an inconvenient
forum and that a court of another state is a more appropriate forum, it
shall stay the proceedings upon condition that a child custody
proceeding be promptly commenced in another designated state and may
impose any other condition the court considers just and proper.
4. A court of this state may decline to exercise its jurisdiction
under this article if a child custody determination is incidental to an
action for divorce or another proceeding while still retaining
jurisdiction over the divorce or other proceeding.
§ 76-g. Jurisdiction declined by reason of conduct. 1. Except as
otherwise provided in section seventy-six-c of this title or by other
law of this state, if a court of this state has jurisdiction under this
article because a person seeking to invoke its jurisdiction has engaged
in unjustifiable conduct, the court shall decline to exercise its
jurisdiction unless:
(a) the parents and all persons acting as parents have acquiesced in
the exercise of jurisdiction;
(b) a court of the state otherwise having jurisdiction under sections
seventy-six through seventy-six-b of this title determines that this
state is a more appropriate forum under section seventy-six-f of this
title; or
(c) no court of any other state would have jurisdiction under the
criteria specified in sections seventy-six through seventy-six-b of this
title.
2. If a court of this state declines to exercise its jurisdiction
pursuant to subdivision one of this section, it may fashion an
appropriate remedy to ensure the safety of the child and prevent a
repetition of the unjustifiable conduct, including staying the
proceeding until a child custody proceeding is commenced in a court
having jurisdiction under sections seventy-six through seventy-six-b of
this title.
3. If a court dismisses a petition or stays a proceeding because it
declines to exercise its jurisdiction pursuant to subdivision one of
this section, it shall assess against the party seeking to invoke its
jurisdiction necessary and reasonable expenses including costs,
communication expenses, attorney's fees, investigative fees, expenses
for witnesses, travel expenses, and child care during the course of the
proceedings, unless the party from whom fees are sought establishes that
the assessment would be inappropriate. No fees, costs or expenses shall
be assessed against a party who is fleeing an incident or pattern of
domestic violence or mistreatment or abuse of a child or sibling, unless
the court is convinced by a preponderance of evidence that such
assessment would be clearly appropriate. The court may not assess fees,
costs, or expenses against this state unless authorized by law other
than this article.
4. In making a determination under this section, a court shall not
consider as a factor weighing against the petitioner any taking of the
child, or retention of the child after a visit or other temporary
relinquishment of physical custody, from the person who has legal
custody, if there is evidence that the taking or retention of the child
was to protect the petitioner from domestic violence or the child or
sibling from mistreatment or abuse.
§ 76-h. Information to be submitted to court. 1. Subject to
subdivision five of this section, in a child custody proceeding, each
party, in its first pleading or in an attached affidavit, shall give
information, if reasonably ascertainable, under oath as to the child's
present address or whereabouts, the places where the child has lived
during the last five years, and the names and present addresses of the
persons with whom the child has lived during that period. The pleading
or affidavit must state whether the party:
(a) has participated, as a party or witness or in any other capacity,
in any other proceeding concerning the custody of or visitation with the
child and, if so, identify the court, the case number, and the date of
the child custody determination, if any;
(b) knows of any proceeding that could affect the current proceeding,
including proceedings for enforcement and proceedings relating to
domestic violence, protective orders, termination of parental rights,
and adoptions and, if so, identify the court, the case number, and the
nature of the proceeding; and
(c) knows the names and addresses of any person not a party to the
proceeding who has physical custody of the child or claims rights of
legal custody or physical custody of, or visitation with, the child and,
if so, the names and addresses of those persons.
2. If the information required by subdivision one of this section is
not furnished, the court, upon motion of a party or its own motion, may
stay the proceeding until the information is furnished.
3. If the declaration as to any of the items described in paragraphs
(a) through (c) of subdivision one of this section 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 other matters pertinent
to the court's jurisdiction and the disposition of the case.
4. Each party has a continuing duty to inform the court of any
proceeding in this or any other state that could affect the current
proceeding.
5. Upon a finding, which may be made ex parte, that the health or
safety of a party or child would be unreasonably put at risk by the
disclosure of identifying information, or if an existing order so
provides, a tribunal shall order that the address of the child or party
or other identifying information not be disclosed in a pleading or other
document filed in a proceeding under this article. 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 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. Upon making an
order that the address of the child or party or other identifying
information not be disclosed, the court shall designate the clerk of the
court or such other disinterested person as the agent for service of
process for the party whose address is to remain confidential and shall
notify the adverse party of such designation in writing. The clerk or
disinterested person designated by the court shall, when served with
process on behalf of the party whose address is to remain confidential,
promptly notify such party whose address is to remain confidential and
forward such process to him or her. The party whose address is to remain
confidential shall inform the clerk of the court or disinterested person
designated by the court of any change in address for purposes of receipt
of service of process.
§ 76-i. Appearance of parties and child. 1. In a child custody
proceeding in this state, the court may order a party to the proceeding
who is in this state to appear before the court in person with or
without the child. The court may order any person who is in this state
and who has physical custody or control of the child to appear in person
with the child.
2. If a party to a child custody proceeding whose presence is desired
by the court is outside this state, the court may order that a notice
given pursuant to section seventy-five-g of this article include a
statement directing the party to appear in person with or without the
child and informing the party that failure to appear may result in a
decision adverse to the party.
3. The court may enter any orders necessary to ensure the safety of
the child and of any person ordered to appear under this section.
4. If a party to a child custody proceeding who is outside this state
is directed to appear under subdivision two of this section or desires
to appear personally before the court with or without the child, the
court may require another party to pay reasonable and necessary travel
and other expenses of the party so appearing and of the child.
TITLE III
ENFORCEMENT
Section 77. Definitions.
77-a. Enforcement under Hague Convention.
77-b. Duty to enforce.
77-c. Temporary visitation.
77-d. Registration of child custody determination.
77-e. Enforcement of registered determination.
77-f. Simultaneous proceedings.
77-g. Expedited enforcement of child custody determination.
77-h. Service of petition and order.
77-i. Hearing and order.
77-j. Warrant to take physical custody of child.
77-k. Costs, fees and expenses.
77-l. Recognition and enforcement.
77-m. Appeals.
77-n. Role of prosecutor or public official.
77-o. Role of law enforcement.
77-p. Costs and expenses.
§ 77. Definitions. As used in this title:
1. "Petitioner" means a person who seeks enforcement of an order for
return of a child under the Hague Convention on the Civil Aspects of
International Child Abduction or enforcement of a child custody
determination.
2. "Respondent" means a person against whom a proceeding has been
commenced for enforcement of an order for return of a child under the
Hague Convention on the Civil Aspects of International Child Abduction
or enforcement of a child custody determination.
§ 77-a. Enforcement under Hague Convention. Under this act, a court of
this state may enforce an order for the return of the child made under
the Hague Convention on the Civil Aspects of International Child
Abduction as if it were a child custody determination.
§ 77-b. Duty to enforce. 1. A court of this state shall recognize and
enforce a child custody determination of a court of another state if the
latter court exercised jurisdiction in substantial conformity with this
article or the determination was made under factual circumstances
meeting the jurisdictional standards of this article and the
determination has not been modified in accordance with this article;
provided, however, that recognition and enforcement of the determination
would not violate subdivision one-c of section two hundred forty of this
chapter or section one thousand eighty-five of the family court act.
2. A court of this state may utilize any remedy available under other
law of this state to enforce a child custody determination made by a
court of another state. The remedies provided in this title are
cumulative and do not affect the availability of other remedies to
enforce a child custody determination.
§ 77-c. Temporary visitation. 1. A court of this state which does not
have jurisdiction to modify a child custody determination, may, if
consistent with subdivision one-c of section two hundred forty of this
chapter or section one thousand eighty-five of the family court act,
issue a temporary order enforcing:
(a) a visitation schedule made by a court of another state; or
(b) the visitation provisions of a child custody determination of
another state that does not provide for a specific visitation schedule.
2. If a court of this state makes an order under paragraph (b) of
subdivision one of this section, it shall specify in the order a period
that it considers adequate to allow the petitioner to obtain an order
from a court having jurisdiction under the criteria specified in title
two of this article. The order remains in effect until an order is
obtained from the other court or the period expires.
§ 77-d. Registration of child custody determination. 1. A child
custody determination issued by a court of another state may be
registered in this state, with or without a simultaneous request for
enforcement, by sending to the appropriate court in this state;
(a) a letter or other document requesting registration;
(b) two copies, including one certified copy, of the determination
sought to be registered, and a statement under penalty of perjury that
to the best of the knowledge and belief of the person seeking
registration the order has not been modified; and
(c) except as otherwise provided in section seventy-six-h of this
article, the name and address of the person seeking registration and any
parent or person acting as a parent who has been awarded custody or
visitation in the child custody determination sought to be registered.
2. On receipt of the documents required by subdivision one of this
section, the registering court shall:
(a) cause the determination to be filed as a foreign judgment,
together with one copy of any accompanying documents and information,
regardless of their form; and
(b) serve notice upon the persons named pursuant to subdivision one of
this section and provide them with an opportunity to contest the
registration in accordance with this section.
3. The notice required by paragraph (b) of subdivision two of this
section must state that:
(a) a registered determination is enforceable as of the date of the
registration in the same manner as a determination issued by a court of
this state;
(b) a hearing to contest the validity of the registered determination
must be requested within twenty days after service of notice; and
(c) failure to contest the registration will result in confirmation of
the child custody determination and preclude further contest of that
determination with respect to any matter that could have been asserted.
4. A person seeking to contest the validity of a registered order must
request a hearing within twenty days after service of the notice. At
that hearing, the court shall confirm the registered order unless the
person contesting registration establishes that:
(a) the issuing court did not have jurisdiction under title two of
this article;
(b) the child custody determination sought to be registered has been
vacated, stayed, or modified by a court having jurisdiction to do so
under title two of this article; or
(c) the person contesting registration was entitled to notice, but
notice was not given in accordance with the standards of section
seventy-five-g of this article, in the proceedings before the court that
issued the order for which registration is sought.
5. If a timely request for a hearing to contest the validity of the
registration is not made, the registration is confirmed as a matter of
law and the person requesting registration and all persons served must
be notified of the confirmation.
6. Confirmation of a registered order, whether by operation of law or
after notice and hearing, precludes further contest of the order with
respect to any matter that could have been asserted at the time of
registration.
§ 77-e. Enforcement of registered determination. 1. A court of this
state may grant any relief normally available under the laws of this
state to enforce a registered child custody determination made by a
court of another state.
2. A court of this state shall recognize and enforce, but may not
modify, except in accordance with title two of this article, a
registered child custody determination of a court of another state;
provided, however, that recognition and enforcement of the determination
would not violate subdivision one-c of section two hundred forty of this
chapter or section one thousand eighty-five of the family court act.
§ 77-f. Simultaneous proceedings. If a proceeding for enforcement
under this title is commenced in a court of this state and the court
determines that a proceeding to modify the determination is pending in a
court of another state having jurisdiction to modify the determination
under title two of this article, the enforcing court shall immediately
communicate with the modifying court. The proceeding for enforcement
continues unless the enforcing court, after consultation with the
modifying court, stays or dismisses the proceeding.
§ 77-g. Expedited enforcement of child custody determination. 1. A
petition under this title must be verified. Certified copies of all
orders sought to be enforced and of any order confirming registration
must be attached to the petition. A copy of a certified copy of an order
may be attached instead of the original.
2. A petition for enforcement of a child custody determination must
state:
(a) whether the court that issued the determination identified the
jurisdictional basis it relied upon in exercising jurisdiction and, if
so, what the basis was;
(b) whether the determination for which enforcement is sought has been
vacated, stayed, or modified by a court whose decision must be enforced
under this article and, if so, identify the court, the case number, and
the nature of the proceeding;
(c) whether any proceeding has been commenced that could affect the
current proceeding, including proceedings relating to domestic violence,
child abuse or neglect, protective orders, termination of parental
rights, and adoptions and, if so, identify the court, the case number,
and the nature of the proceeding;
(d) the present physical address of the child and the respondent, if
known;
(e) whether relief in addition to the immediate physical custody of
the child and attorney's fees is sought, including a request for
assistance from law enforcement officials and, if so, the relief sought;
and
(f) if the child custody determination has been registered and
confirmed under section seventy-seven-d of this title, the date and
place of registration.
3. Upon the filing of a petition, the court shall issue an order
directing the respondent to appear in person with or without the child
at a hearing within three court days and may enter any order necessary
to ensure the safety of the parties and the child. The hearing must be
held not more than three court days after the filing of the petition,
provided that the petition has been served not less than twenty-four
hours prior to the hearing. Service may be by any means directed by the
court pursuant to section three hundred eight of the civil practice law
and rules. The court may extend the date of the hearing briefly for good
cause shown or upon the request of the petitioner.
4. An order issued under subdivision three of this section must state
the time and place of the hearing and advise the respondent that at the
hearing the court will order that the petitioner may take immediate
physical custody of the child and the payment of fees, costs, and
expenses under section seventy-seven-k of this title, and may schedule a
hearing to determine whether further relief is appropriate, unless the
respondent appears and establishes that:
(a) the child custody determination has not been registered and
confirmed under section seventy-seven-d of this title and that:
(1) the issuing court did not have jurisdiction under title two of
this article;
(2) the child custody determination for which enforcement is sought
has been vacated, stayed, or modified by a court having jurisdiction to
do so under title two of this article or that enforcement would violate
subdivision one-c of section two hundred forty of this chapter or
section one thousand eighty-five of the family court act;
(3) the respondent was entitled to notice, but notice was not given in
accordance with the standards of section seventy-five-g of this article,
in the proceedings before the court that issued the order for which
enforcement is sought; or
(b) the child custody determination for which enforcement is sought
was registered and confirmed under section seventy-seven-c of this
title, but has been vacated, stayed, or modified by a court of a state
having jurisdiction to do so under title two of this article
§ 77-h. Service of petition and order. Except as otherwise provided in
section seventy-seven-j of this title, the petition and order must be
served, by any method authorized by the law of this state, upon
respondent and any person who has physical custody of the child. Service
may be made outside the state in the manner prescribed by section
seventy-five-g of this article.
§ 77-i. Hearing and order. 1. Unless the court issues a temporary
emergency order pursuant to section seventy-six-c of this article, upon
a finding that a petitioner is entitled to immediate physical custody of
the child, the court shall order that the petitioner may take immediate
physical custody of the child unless the respondent establishes that:
(a) the child custody determination has not been registered and
confirmed under section seventy-seven-d of this title and that:
(i) the issuing court did not have jurisdiction under title two of
this article;
(ii) the child custody determination for which enforcement is sought
has been vacated, stayed, or modified by a court of a state having
jurisdiction to do so under title two of this article or enforcement of
the determination would violate subdivision one-c of section two hundred
forty of this chapter or section one thousand eighty-five of the family
court act; or
(iii) the respondent was entitled to notice, but notice was not given
in accordance with the standards of section seventy-five-g of this
article, in the proceedings before the court that issued the order for
which enforcement is sought; or
(b) the child custody determination for which enforcement is sought
was registered and confirmed under section seventy-seven-d of this title
but has been vacated, stayed, or modified by a court of a state having
jurisdiction to do so under title two of this article.
2. The court shall award the fees, costs, and expenses authorized
under section seventy-seven-k of this title and may grant additional
relief, including a request for the assistance of law enforcement
officials, and set a further hearing to determine whether additional
relief is appropriate.
3. If a party called to testify refuses to answer on the ground that
the testimony may be self-incriminating, the court may draw an adverse
inference from the refusal.
4. A privilege against disclosure of communications between spouses
and a defense of immunity based on the relationship of husband and wife
or parent and child may not be invoked in a proceeding under this act.
§ 77-j. Warrant to take physical custody of child. 1. Upon the filing
of a petition seeking enforcement of a child custody determination, the
petitioner may file a verified application for the issuance of a warrant
to take physical custody of the child if the child is at imminent risk
of suffering serious physical harm or of removal from this state.
2. If the court, upon the testimony of the petitioner or other
witness, finds that the child is likely to suffer imminent serious
physical harm or to be removed from this state, it may issue a warrant
to take physical custody of the child. Except in extraordinary
circumstances, the petition must be heard on the next court day after
the warrant is executed. Any adjournment for extraordinary circumstances
shall be for not more than three court days. The application for the
warrant must include the statements required by subdivision two of
section seventy-seven-g of this title.
3. A warrant to take physical custody of a child must:
(a) recite the facts upon which a conclusion of imminent serious
physical harm or removal from the jurisdiction is based;
(b) direct law enforcement officers to take physical custody of the
child immediately and deliver the child to the petitioner or, where
necessary, to act jointly with the local child protective service to
take immediate steps to protect the child; and
(c) provide for the placement of the child pending final relief.
4. The respondent must be served with the petition, warrant, and order
immediately after the child is taken into physical custody.
5. A warrant to take physical custody of a child is enforceable
throughout this state. If the court finds on the basis of the testimony
of the petitioner or other witness that a less intrusive remedy is not
effective, it may authorize law enforcement officers to enter private
property in order to execute the warrant and take physical custody of
the child. If required by exigent circumstances of the case and
necessary to the protection of the child, the court may authorize law
enforcement officers to make a forcible entry at any hour.
6. The court may impose conditions upon placement of a child to ensure
the appearance of the child and the child's custodian.
§ 77-k. Costs, fees and expenses. 1. The court shall award the
prevailing party, including a state, necessary and reasonable expenses
incurred by or on behalf of the party, including costs, communication
expenses, attorney's fees, investigative fees, expenses for witnesses,
travel expenses, and child care during the course of the proceedings,
unless the party from whom fees or expenses are sought establishes that
the award would be inappropriate. No fees, costs or expenses shall be
assessed against a party who is fleeing an incident of domestic violence
or mistreatment or abuse of a child or sibling, unless the court is
convinced by a preponderance of evidence that such assessment would be
clearly appropriate.
2. The court may not assess fees, costs, or expenses against a state
unless authorized by law other than this article.
§ 77-l. Recognition and enforcement. A court of this state shall
accord full faith and credit to an order issued by another state and
consistent with this article which enforces a child custody
determination by a court of another state unless the order has been
vacated, stayed, or modified by a court having jurisdiction to do so
under title two of this article, unless recognition and enforcement
would violate subdivision one-c of section two hundred forty of this
chapter or section one thousand eighty-five of the family court act.
§ 77-m. Appeals. An appeal may be taken from a final order in a
proceeding under this title in accordance with article fifty-five of the
civil practice law and rules and article eleven of the family court act
and may be granted a preference in the discretion of the court to which
the appeal is taken. Unless the court enters a temporary emergency order
under section seventy-six-c of this article, the enforcing court may not
stay an order enforcing a child custody determination pending appeal.
§ 77-n. Role of prosecutor or public official. 1. In a case arising
under this article or involving the Hague Convention on the Civil
Aspects of International Child Abduction, the prosecutor or other
appropriate public official may take any lawful action, including resort
to a proceeding under this title or any other available civil proceeding
to locate a child, obtain the return of a child, or enforce a child
custody determination if there is:
(a) an existing child custody determination;
(b) a request to do so from a court in a pending child custody
proceeding;
(c) a reasonable belief that a criminal statute has been violated; or
(d) a reasonable belief that the child has been wrongfully removed or
retained in violation of the Hague Convention on the Civil Aspects of
International Child Abduction.
2. A prosecutor or appropriate public official acting under this
section acts on behalf of the state or local government entity and may
not represent any private party.
§ 77-o. Role of law enforcement. At the request of a prosecutor or
other appropriate public official acting under section seventy-seven-n
of this title, a law enforcement officer, as defined in subdivision
thirty-four of section 1.20 of the criminal procedure law, may take any
lawful action reasonably necessary to locate a child or a party and
assist a prosecutor or appropriate public official with responsibilities
under section seventy-seven-n of this title.
§ 77-p. Costs and expenses. If the respondent is not the prevailing
party, the court may assess against the respondent all direct expenses
and costs incurred by the prosecutor or other appropriate public
official and law enforcement officers under section seventy-seven-n or
seventy-seven-o of this title.
TITLE IV
MISCELLANEOUS PROVISIONS
Section 78. Application and construction.
78-a. Severability clause.
§ 78. Application and construction. In applying and construing this
article, consideration must be given to the need to promote uniformity
of the law with respect to its subject matter among states that enact
it.
§ 78-a. Severability clause. If any provision of this article or its
application to any person or circumstance is held invalid, the
invalidity does not affect other provisions or applications of this
article which can be given effect without the invalid provision or
application, and to this end the provisions of this article are
severable.
Make sure to consult a lawyer or your state legislature for any changes to the law.
New York Divorce Laws
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