Legal Question in Family Law in New York

Re: Ex Parte Order Not TO Leave State

A person may appear in court for "limited purposes" without necessarily subjecting themselves to the court's jurisdiction. All papers submitted and appearances must clearly specify that the appearance is for limited purposes and be consistent with the statute covering "limitation of jurisdiction".

However, the Court can decide custody, etc., concerning your child, without your presence or asserting jurisdiction over you.

Procedural Options:

a. You may file a Habeas Corpus Petition in NY seeking return of your child pursuant the Kentucky Court's jurisdiction over the PRIOR court proceeding; and

b. File an application for a Declaratory Judgment, Court Order, Judgment or Determination that NY Waives jurisdiction over the child {custody} issue on the grounds that NY is not the child's "home state," because Kentucky is the child's "home state."

You may seek such a Order, Judgment or Determination by expedited motion (Order to Show Cause, etc.;) but you must come to the court with "clean hands," (to wit: not in violation of a court order or stipulation not to leave NY). You must also be prepared with documentary evidence that the child has continuously resided with you in Kentucky for 6 or more months and the parties, intended or understood, that the child would continue to live in Kentucky; and further that the living arrangement was not temporary; and there was no understanding that the child would return to NY to live.

Absent meeting NY's rather high standard of proof that the court will require to waive jurisdiction; NY will probably assert jurisdiction for the limited purposes of ascertaining whether the child should remain with the mother, in NY.

GOOD LUCK.

PHROSKA L. McALISTER, ESQ.