Disclaimer: This article is general information, not legal advice. Interstate custody cases are fact-specific. If you need help with a Brooklyn or New York custody issue, start here: Child Custody (Gilmer Legal).
If you’re panicking because your co-parent moved (or is about to move)
When a child custody situation crosses state lines, most parents have urgent questions like:
- “Can I file in New York?”
- “What if my child is physically in another state right now?”
- “Do I have to race to file first?”
- “What if there’s an emergency and my child isn’t safe?”
New York (like most states) uses a law called the UCCJEA – the Uniform Child Custody Jurisdiction and Enforcement Act – to decide which state has authority to make (or modify) custody orders. In New York, it is codified in Domestic Relations Law Article 5-A. See: Domestic Relations Law Section 75-A (Definitions), Section 76 (Initial child custody jurisdiction), and Section 76-C (Temporary emergency jurisdiction).
This matters because filing in the wrong state can lead to delay, extra legal fees, and jurisdiction fights before the court even reaches the custody facts.
Key takeaways to understand first
- Home state is usually the starting point. In general, it means where a child lived with a parent for at least six consecutive months right before the case is filed.
- New York can sometimes keep jurisdiction for a limited time even after a move if New York was the home state within the last six months and a parent still lives here (see DRL Section 76).
- Physical presence isn’t everything. The child being in New York is not automatically enough by itself to give New York custody jurisdiction (see DRL Section 76(3)).
- Emergency jurisdiction exists, but it’s often temporary (see DRL Section 76-C).
What is the UCCJEA and why does it control interstate custody cases?
The UCCJEA is designed to prevent competing custody orders in different states and to put custody litigation in the state with the closest connection to the child’s life. In New York, the relevant statutes are in Article 5-A of the Domestic Relations Law (for example, DRL Section 76).
In plain English:
- The UCCJEA is about which state gets to decide custody (jurisdiction).
- It is not about which parent “deserves” custody.
If you need practical help with your specific situation, you can also review Gilmer Legal’s guidance on emergency custody in Brooklyn and temporary emergency custody filings in New York.
Step 1: Understand the “home state” rule (the #1 filing issue across state lines)
What does “home state” mean in New York custody law?
Under the UCCJEA definitions in New York, “home state” generally means the state where the child lived with a parent (or person acting as a parent) for at least six consecutive months immediately before the proceeding begins. Temporary absences usually count. See DRL Section 75-A.
For a child under six months old, the home state is usually the state where the child lived from birth with a parent or qualifying caretaker (again, see DRL Section 75-A).
A common misunderstanding
Parents often assume: “My child is in New York right now, so I can file in New York.” But the statute explains that physical presence is not necessary or sufficient for custody jurisdiction (see DRL Section 76(3)).
Step 2: Don’t miss the six-month lookback that can protect a left-behind New York parent
New York may have jurisdiction if it is the child’s home state on the filing date, or if it was the home state within six months before filing and a parent still lives in New York. This is stated directly in DRL Section 76(1)(a).
This matters in real Brooklyn and NYC situations where one parent relocates quickly and the other parent is trying to keep New York as the forum. If the move is recent, timing can change jurisdiction outcomes.
Step 3: What if there’s no clear home state?
If no state has clear home-state jurisdiction (or the home state declines), New York may still have jurisdiction if there is a significant connection to New York beyond mere physical presence and substantial evidence in New York about the child’s care, protection, training, and relationships. See DRL Section 76(1)(b).
This can come up when a child moved frequently, the child lived internationally, or parents split time between states without a stable pattern.
Step 4: Temporary emergency jurisdiction (when New York can step in quickly)
If there is an urgent safety issue, New York may be able to act under temporary emergency jurisdiction, but there are limits.
When can New York use emergency jurisdiction?
New York can have temporary emergency jurisdiction if the child is present in New York and the child has been abandoned, or there is an emergency requiring protection of the child (or a sibling or parent). See DRL Section 76-C(1).
Why emergency doesn’t always mean New York keeps the case forever
Emergency orders under the UCCJEA are often temporary, especially when another state has jurisdiction or an existing case is already pending. DRL Section 76-C describes time limits and court-to-court communication requirements in some situations. See DRL Section 76-C.
For NY-specific filing context, see Gilmer Legal’s page on temporary emergency custody in New York and its overview of what happens in a Brooklyn emergency custody filing.
Step 5: What if the other parent filed in another state first?
Filing first does not automatically mean the other state has proper jurisdiction. Courts still analyze the UCCJEA rules (home state, significant connection, etc.), including the exclusive jurisdictional basis described in DRL Section 76(2).
What to avoid:
- Assuming you’re stuck just because the other parent filed first.
- Filing competing cases in multiple states without a coordinated legal strategy.
- Ignoring paperwork from another state (missed deadlines create serious risk).
Step 6: Documents that usually matter in interstate jurisdiction fights
Interstate cases often rise or fall on a clean residency timeline. Helpful records commonly include:
- Leases, deeds, utility bills (residence proof)
- School enrollment and attendance records
- Medical provider records
- Daycare records
- Travel records and long stays vs short visits
- Any existing custody or visitation orders
This is not about paperwork for its own sake – it helps show where the child actually lived and where substantial evidence is located (see DRL Section 76(1)(b)).
Step 7: Where does this get filed in New York (and what forms are involved)?
Interstate custody jurisdiction issues can arise in Family Court custody and visitation cases and/or in a Supreme Court divorce case, depending on your situation. If you need to locate court forms, the New York State Unified Court System publishes:
- UCCJEA forms for interstate custody/visitation: NYCourts – UCCJEA Forms.
- General custody and visitation forms (including modification/enforcement): NYCourts – Custody & Visitation Forms.
Important note: forms are not strategy. In interstate custody cases, jurisdiction arguments and timelines are often the central battleground.
A Brooklyn-focused example (how the UCCJEA analysis can look)
Example 1: A child lived in Brooklyn with both parents for years. One parent moves with the child out of state. The other parent remains in Brooklyn. Depending on timing, New York may still have jurisdiction under the home-state within six months concept (see DRL Section 76(1)(a)).
Example 2: The child has lived outside New York for well over six months, is enrolled in school elsewhere, and daily life has shifted to the new state. At that point it may be much harder to keep the case in New York.
Relocation disputes often overlap with UCCJEA issues. Related reading: Can a parent prevent the other parent from moving out of state with the children?.
Frequently asked questions (structured for featured snippets)
- What does “home state” mean under the UCCJEA in New York?
In New York, “home state” generally means the state where the child lived with a parent (or a person acting as a parent) for at least six consecutive months immediately before a custody case is started. Temporary absences are usually counted. See DRL Section 75-A.
- Can I file for custody in New York if my child just moved out of state?
Possibly. New York can have jurisdiction if it was the home state within six months before the case started, the child is now absent from New York, and a parent still lives in New York. See DRL Section 76(1)(a).
- Does my child being physically in New York automatically mean New York has custody jurisdiction?
No. Physical presence alone is not automatically enough to establish custody jurisdiction. See DRL Section 76(3).
- What is temporary emergency jurisdiction in New York custody cases?
New York can sometimes act under temporary emergency jurisdiction if the child is present in New York and the child has been abandoned, or there is an emergency requiring protection. See DRL Section 76-C.
- What if the other parent filed in another state first?
Filing first does not always mean the other state has proper jurisdiction. Courts still analyze home state and other UCCJEA bases (see DRL Section 76).
- What should I gather to prove the child’s home state?
Start with a timeline and supporting records like school enrollment/attendance, medical providers, and proof of residence. These records help show where substantial evidence is located (see DRL Section 76(1)(b)).
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If you’re dealing with an interstate custody issue involving Brooklyn/Kings County and another state, consider speaking with counsel early – especially if the move was recent or safety is a concern. Start here: Child Custody (Gilmer Legal).
Related resources on this site include: emergency custody in Brooklyn, temporary emergency custody in New York, and appealing a custody order in New York Family Court.
