A Woman Leaves State A, Gives Birth and Domiciles With Child in State B

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Which State Has Jurisdiction Over the Child?

(1) Gerald Nissenbaum, Court Where Child Resides Has Jurisdiction. Boston Herald, Nov 10, 2013.
Note: The newspaper’s website puts its content behind pay wall two weeks after the content appears in print.

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Gerald Nissenbaum Court where child resides has jurisdiction
Sunday, November 10, 2013
By: Gerald Nissenbaum, Divorce 411

Q: My husband and I grew up in, married in and were living in Ontario, Canada. After our marriage, my husband became abusive. He kept apologizing and promised to stop, but things kept getting worse.

Then I became pregnant. At that point I needed to get some space from my husband to consider everything. So I went to live with some friends in Massachusetts. After I got here, I decided to stay here permanently and to raise our child here.

A: While you’d need to check this with an experienced family law lawyer in Ontario, Canada, its applicable statute specifies Ontario judges only have power to make orders regarding a child who is a ­habitual resident there.

Your husband seemingly has claimed your child fits that definition since it was a fetus while you lived in Canada. But that won’t fly because you have the freedom to go wherever you want for whatever reason you want. Obviously, because you were pregnant, the fetus goes with you when you changed your domicile.

Your husband could ask the Ontario court to exercise parens patriae jurisdiction. While this is an over simplification, that jurisdiction can be used only when the court must act to protect a child who cannot protect itself. Here, the facts demonstrate that, by leaving, you removed the child from probable harm from its father’s wrongful conduct toward you. Thus parens patriae ought not to apply, something I’d conclude even if the issue of his bad conduct were not being raised.

Massachusetts has proper jurisdiction over your child because the child was born and resides here permanently. Therefore, the Ontario court should bow out of the picture. But the bad news is that between now and when the Ontario court defers to Mass­achusetts, you’ll be litigating this issue in two jurisdictions.

But the good news is that you and your child are in a safe place and you don’t have to ever live with your husband again.

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(2) Erik Eckholm, Seeing a Threat in Admonishment of a Mother-to-Be for Moving Away; Cross-country move stirs custody battle with possibly wider implications for women. New York Times, Nov 24, 2013.
http://www.nytimes.com/2013/11/2 ... ights-of-women.html

My comment:
(a) Matter of Sara Ashton McK v Samuel Bode M (Appellate Division, First Department, Nov 14, 2013.
http://www.nycourts.gov/reporter/3dseries/2013/2013_07554.htm
(b) New York Supreme Court, Appellate Division
http://en.wikipedia.org/wiki/New_York_Supreme_Court,_Appellate_Division
(composed of four departments; hears appeals from the New York Supreme Court [state's general trial court], as well as specialized trial courts such as Surrogate's Court, Family Court, County Court, and Court of Claims)

(c) Uniform Child Custody Jurisdiction and Enforcement Act
http://en.wikipedia.org/wiki/Uni ... And_Enforcement_Act
(a Uniform Act drafted by the National Conference of Commissioners on Uniform State Laws in 1997; replaced a previous Uniform Act, the "Uniform Child Custody Jurisdiction Act", primarily because the old act was inconsistent with the federal Parental Kidnapping Prevention Act)

has not been adopted by only two jurisdictions within US: Massachusetts and Puerto Rico.

(d) In New York state court system, a trial judge may assign a case to a referee / judicial hearing officer (JHO). See
(i) Who's Who in the Courtroom?  New York City Family Court, undated.
http://www.nycourts.gov/courts/nyc/family/whoswho.shtml
(ii) Part 122 Judicial Hearing Officers. Rules of the Chief Administrative Judge, undated.
http://www.nycourts.gov/rules/chiefadmin/122.shtml

(e) In my view, the decision of Appellate Division is correct. My concern is not so much about women's right but, more fundamentally, constitutional rights. The child was born in New York state, and until removed from there, had not lived in California. Thus the latter state has no personal jurisdiction over the child.
(f) A court's personal jurisdiction is its authority over a person. A woman, say, abandons her spouse and moves to another state. After some time (a couple of months usually; state laws vary) she became a resident of the new state, in whose court she can petition for divorce. Still she will have to return to the state she lived and her husband and their children still live, to partition marital property and decide child custody.
(g) Decisions of United States Supreme Court in this regard are rooted in due process clause of the Fourteenth Amendment to the United States Constitution.