Legal Question in Family Law in New York
Leaving With Child
In April 2005 my daughter Angela married a young Navy man, Tommy in Washington State. In June 2005 their son was born. In June 2007 Tommy was given a less than honorable discharge from the Navy. They then moved to New York State and have been living with Tommy�s father and stepmother ever since.
Tommy works for his mother�s company at slightly more than minimum wage. He drinks a lot, is dishonest, and irresponsible with money. Consequently, Angela is very unhappy and tired of living across country with her in-laws. She would like to leave with their son but is afraid it might be illegal to take him out of state without the father�s consent.
What advice can you give?
4 Answers from Attorneys
Re: Leaving With Child
Under WA law it is not illegal for a parent to take a child and move to another state, unless there is a court order that limits that right; I can't speak to NY law on that subject. However, even under WA law, in the event that the mother moved back to WA with the child, unless there are exceptional circumstances the WA courts would recognize NY jurisdiction and would in fact reject the case for lack of jurisdiction until the child had resided in WA for 6 months. It is a gamble to move back to WA and see if you can wait the six months without an action from the father filing in NY. If he filed in NY before the six months residence in WA had run, WA courts would recognize the jurisdiction of the NY court. You may well anticipate that a NY court would issue orders to compel you to return the child to NY pending adjudication of the matter, and WA courts would support the execution of those orders.
Re: Leaving With Child
Since the child has been living in New York State since June 2007, New York State has jurisdiction over the child. Therefore, unless by Court Order or consent, the child is to remain in New York.
To obtain a Court Order, the mother must petition the Family Court to remove the child from the jurisdiction. The Family Court Judge looks at the "best interest of the child" to make the determination. There is a presumption in the law (that may be rebutted) that it is in the best interest of a child that he or she is to be raised by a father and mother.
Mike.
Re: Leaving With Child
Once the child has lived in the State of New York for 6 months or more, New York State has become his home state and has jursdiction over the child.
That being said, if she leaves and the child's father does not do anything for 6 months, the home state of the child changes. It is a risk.
The best thing for the mother to do is consult with a local attorney and institute a petition for custody and relocation. There are numerous obsticals but in some cases they can be over come.
If your daughter wishes to have a free consultation, have her contact my office at 516.746.4747 or e-mail me at [email protected]
Joel R. Salinger, Esq.
Re: Leaving With Child
Once the child has lived in the State of New York for 6 months or more, New York State has become his home state and has jursdiction over the child.
That being said, if she leaves and the child's father does not do anything for 6 months, the home state of the child changes. It is a risk.
The best thing for the mother to do is consult with a local attorney and institute a petition for custody and relocation. There are numerous obsticals but in some cases they can be over come.
If your daughter wishes to have a free consultation, have her contact my office at 516.746.4747 or e-mail me at [email protected]
Joel R. Salinger, Esq.
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