We live in the greatest country in the history of civilization, which enjoys freedom and a highly mobile population. But divorce and child custody laws are unique to every State and country. Thousands of immigrants who emigrate to New York to pursue higher education or to see financial success, get married and have children here, and then they leave, with or without the spouse, and the children. As an experienced New York divorce lawyer, I know how to unravel the often overlapping laws and help you to achieve your goals.
Due process requires that every litigant receive notice and an opportunity to be heard. Generally speaking, you cannot be forced to travel across the globe, or even to New Jersey if you have not presence or contact with that jurisdiction.
Habeas corpus was known in the common law of England and America as "the great writ". New York law provides that it is available in child custody an visitation litigations. The Latin phrase means "produce the body". The skilled and experienced courtroom lawyer knows when and how to how utilize the writ of habeas corpus, in situations when the child is being unlawfully detained.
The Hague Convention on the Civil Aspects of International Child Abduction
In which country's courts will a child custody case be tried? The Hague Convention is an international treaty which has been signed by the United States, Canada, most countries in Central and South America, throughout Europe, much of the Middle East, Australia and South Africa. The signatory countries to a quick method to return a child who has been wrongfully taken to another country. The treaty discourages a parent from snatching a child and crossing and international boundary to impose geographic and financial obstacles on the other parent. It does not provide which parent will prevail in Court, but it does determine where the child custody litigation will take place.
The Uniform Interstate Family Support Act (UIFSA) is a uniform act which has been adopted by every state to address child support enforcement and the jurisdiction to modify child support orders. UIFSA provides uniform rules when more than one state is involved in obtaining or addressing or attacking a child support or spousal support order, as is often the case in our mobile society. Under UIFSA parent can litigate those issue by mail to the local courthouse where the other parent is located without having to physically travel to another state.
The Uniform Child Custody Jurisdiction and Enforcement Act ( UCCJEA), another uniform act, which has been adopted by most states, promotes the policy of the New York courts to eliminate jurisdictional competition and to promote cooperation and communication between courts. Like the Hague Convention the UCCJEA sets forth rules which determine the location where the child custody litigation will take place. Generally speaking, the "home state" time period is six months. So if the other parent takes the child to another state without your permission you need to act, usually within six months of the departure. Or face being relegated to a child custody litigation outside of New York state.
The Parental Kidnapping Protection Act is a federal law. This law also protects the New York parent and child against an adverse determination by another state on the subjects of child custody and visitation.
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