During the COVID-19 pandemic, many parents left New York state with their children and have not returned. While parents relocated with their children, we questioned whether New York courts would maintain jurisdiction to compel a parent to return a child after having resided outside the state for over six months.

The answer requires both an analysis of Domestic Relations Law Article 5-A, known as the Uniform Child Custody and Enforcement Act (UCCJEA), and the facts of the case. Under the UCCJEA, (enacted in every state except Massachusetts), jurisdiction is based upon a child's "home state," which is of paramount importance. Domestic Relations Law (DRL) §75-a(7) defines a child's "home state" as: "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."

Pursuant to DRL §76, titled "Initial child custody jurisdiction," New York has jurisdiction to make an initial child custody determination only if one of the following provisions (a) through (d) apply: (a) New York is the home state of the child—or—New York was the home state of the child within six months prior to the commencement AND the child is absent but a parent or other person acting as a parent lives in New York; (b) no other state has jurisdiction under subdivision (a)—or—a state that is the home state of the child has declined to exercise jurisdiction on the ground that New York is a more appropriate forum under DRL §76-f or 76-g AND both of the following factors are met: (i) the parties (child plus parent(s)) have a significant connection to New York other than mere physical presence, and (ii) substantial evidence is available in New York concerning the child's care, protection, training and personal relationships; (c) all states having jurisdiction under (a) or (b) have declined to exercise jurisdiction on the ground that New York is a more appropriate forum under DRL §§76-f or 76-g;—OR—(d) no state would have jurisdiction under (a), (b), or (c).