WHERE CAN I FILE AND FOR WHAT?

So, you and the other parent of your child met in NY, moved to MA, had a child there, and entered a settlement agreement in MA which became an order of the MA court. Then you moved back to NY having obtained joint legal and shared physical custody of your child. You have equal say in all important decisions of the child’s life and see the child every weekend. Now the other parent moves to CT and takes the child with her.

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You want tot move the court for relief. The other parent did this without consulting you or giving you advance notice. You found out when you went to MA to pick up your child for the weekend only find them not there and a neighbor giving you the new address for them. So, now you want to run to court to in NY to change custody. Nope, no good. As long as either parent and/or the child continue to reside in MA it has exclusive jurisdiction to modify the order. NY could enforce it, but not modify it, and only if it has personal jurisdiction over the other parent. In this case, only if you personally serve the other parent in NY otherwise no basis for personal jurisdiction over the other parent exists in NY.

But now the other parent and child reside in CT. If they have not yet lived there for six months, you can only go to MA to file. If they have been in CT for over six months, then you must file in CT.

Now the other parent has your ire and now you want to raise all the true facts that you prior did not to be nice in MA in order to arrive at a settlement, such as: the other’s parents abusiveness of you and the child prior to your separation; the other parent’s mental disorders and how much your child does not want to go back to the other parent and wants to reside with you. Guess what? Too late. You should have raised all this before settling. If you settled despite all this, it could not have been that bad; or if it is true and harmful to the child, you are a bad excuse for a parent allowing it to continue (also known as inadequate guardianship in failing to protect the child).

Okay, so you move the Court in MA seeking a change of custody and/or to force the return of the other parent with the child to MA. The court will see that you moved from MA to NY and question your motives here. Why can you move but not the other parent? CT may be closed to NY than MA. The schools and all else may be just as good or better in CT than MA. All of your reasons for seeking custody exited before the settlement agreement was entered into and you are now precluded from arguing it. So, other than seeking contempt for failure to inform you to ensure it hopefully does not happen again, what else is there? Nothing, unless there is something more such as the facts of abuse did not first arise until after the settlement agreement was entered into.

If the abuse is new, you can file in NY for temporary emergency jurisdiction to protect the child with a temporary order of protection that also gives you temporary custody to give you time to file in the correct jurisdiction. Once the proper jurisdiction dockets the case and protects the child, the NY case is either withdrawn or dismissed.