At the DePalo Law Firm we have noticed a trend in an increased number of relocation cases and parties leaving the jurisdiction as a result of COVID, working at home opportunities and job changes.  As many parents can work from home and because of the ease of movement from state to state, there has been an influx of cases dealing with jurisdiction and changing where a child has resided pursuant to a family court order or judgment of divorce.  There was a recent case in the Third Department in New York where the petitioner/ father had filed a temporary emergency modification alleging neglect and abuse of the child by the mother/ respondent and her family. The child resided in Michigan. 

 Initially the Family court granted the father temporary legal and physical custody.  They issued a protective order barring contact between the mother and child and ordered an investigation of the allegations.  The respondent mother moved to dismiss arguing that the court lacks jurisdiction under the Uniform Child-Custody Jurisdiction and Enforcement Act (“UCCJEA”) and that Michigan’s Department of Health and Human Services (“MDHHS”) investigated the allegations made by the father and concluded they were not supported.  

The court granted the mother’s motion to dismiss denying a request by the attorney of the child (“AFC”) to conduct a hearing to determine the risk of imminent harm to the child.  The father and AFC both appealed contending that the allegations warranted a hearing under Domestic Relations Law 76-C. 

 The Third Department agreed holding that the Family Court erred in granting the motion to dismiss based on a vague, unsigned report by MDHHS without first conducting a hearing.  Basically, what this means is that the father was asking for jurisdiction in New York under an emergency application stating that the mother had neglected the children.  The case really should have been brought in Michigan where the child resides, however, if there is an emergency and a child is at risk, the state where the child currently is which was in this case New York with the father, can exercise jurisdiction and act.  

In this case the Family Court, based on the law of the UCCJA which deals with  jurisdiction (where a child resides and what court should hear the case), dismissed the petition of the father and they stated that there was no reason for an emergency application as the Michigan Human Resources had investigated. They found no imminent harm or emergency situation.  However, the court did not hear testimony and they did not have a trial regarding the circumstances and if there was in fact an emergency. The higher court disagreed and sent the case back for a hearing. The father was successful in at least having a hearing granted to determine if there was a basis to keep the child in New York based on risk of harm. Courts often rule on the side of caution. Matter of Chester HHv. Angela GG., 535014 (August 18).