What can I do about the complaint for custody my ex filed in the state he lives in?
The first state to impose a custody order retains "continuing exclusive jurisdiction" as long as one of the parties continues to reside in that state or if both parties agree to transfer jurisdiction to another state. Another state may modify the decree only if the original state no longer has jurisdiction over the case or has declined jurisdiction to modify the custody or visitation decree.
In making a determination on whether a change of venue motion should be granted, the judge will consider things such as:
• Where the child now lives and how long the child has lived there
• Where each party lives
• The financial situations of the people involved
• The nature and location of the evidence needed in the case (including child testimony and other witnesses)
• Any other things that the judge thinks are important
If no state has made a valid custody determination, the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act, as adopted by each state, will apply. A court in a particular state has power to hear a custody case if that state is the child's "home state" or has been the home state of the child within six months of the date the legal action was brought and at least one parent continues to reside in the state. Other situations include those in which a state with jurisdiction over a custody case declines jurisdiction or no other state may assert jurisdiction over the child.
In modification proceedings, it will be the law of the "continuing exclusive jurisdiction" state which will govern whether or not the nonresident has custody. Note, however, that for enforcement purposes, it will be the law of the enforcing state that will govern enforcement proceedings.
The Uniform Interstate Family Support Act (UIFSA) allows the fifty (50) states and various foreign nations to initiate a support action. The custodial parent files a petition on the local court which is then forwarded to the country and/or state in which the obligor is located. UIFSA may be used to establish a support obligation, enforce an existing order of support, or be used to assist in parent location.
Once issued, an support order may be sent to any other UIFSA state for registration. allowing that state's authorities to enforce the order. Registration does not give the enforcing state any authority to modify the order. The initiating state maintains continuing exclusive jurisdiction even though the debtor lives, or the order is being enforced, elsewhere.
A motion to modify a custody order may be made when there is a significant change in circumstances. If a parent denies court ordered visitation, it is possible to bring a petition in court to find the denying party in contempt. In some cases, criminal charges of interference with custody may apply. It is possible to petition for a change of custody when a significant change of circumstances may be proven. The court may grant such a motion if it is determined to be in the child's best interests, taking all the facts and circumstances into account.
Federal legislation provides a foundation for states by identifying a minimum set of acts or behaviors that define child abuse and neglect. The Federal Child Abuse Prevention and Treatment Act (CAPTA), (42 U.S.C.A. §5106g), as amended by the Keeping Children and Families Safe Act of 2003, defines child abuse and neglect as, at minimum:
* Any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation; or
* An act or failure to act which presents an imminent risk of serious harm.
Within the minimum standards set by CAPTA, each state is responsible for providing its own definitions of child abuse and neglect. Most states recognize four major types of maltreatment: neglect, physical abuse, sexual abuse, and emotional abuse.
It will be a matter of subjective determination, based on all the facts and circumstances involved, to decide if child abuse exists and warrants a change of custody. Please see the information at the following links for further discussion:http://www.cqcapd.state.ny.us/counsels_corner/cc33.htm