Q: My ex wife and I were divorced in Georgia and they issued a final judgment and decree of divorce, parenting plan order and settlement agreement. My child's mother has now filed in Westchester County, NY to modify custody. Under UCCJEA, DRL 76(B) and GA law, since I still reside in the state of GA and have never moved, which is the original state that issued the original orders, any modification of custody should be done here because GA retains continuing, exclusive jurisdiction. However, in court yesterday the Judge wasn't ready to rule on the motion to dismiss (I had a NY attorney there for me), hadn't read it and rescheduled the court date giving my ex more time to respond. Is it possible for this new judge to ignore all law, federal, NY law and GA law and allow her to modify in NY?
A: David's Answer: Obviously the Judge cannot ignore the law, otherwise you can appeal. However, the law is more nuanced than you present as the UCCJEA also includes an exception to "continuing, exclusive jurisdiction" if the Judge finds the home state to be an "inconvenient forum." In a nutshell, the Judge would need to determine that all or most of the witnesses & evidence on the issue of custody no longer exist in GA - usually this is when the child's been residing in NY for many years. For a 2d opinion, schedule a consult with a Westchester Family Law attorney. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
I am a former Family Court prosecutor and handle all divorce and family law matters, including contested and uncontested divorces, child custody/visitation, child support/paternity, adoptions, family offense (orders of protection), child abuse/neglect and juvenile delinquency. I practice primarily in Westchester (White Plains and vicinity) and the Bronx (Riverdale and vicinity). My website can be found at www.blivenlaw.net.
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