USA – NEW YORK Law and Practice Contributed by: Gretchen Beall Schumann and Rashel Zywica, Schumann Law LLC
by default, and not made available to the public. Only the parties and their attorneys have access. A party must file a motion for the use of an anonymous case caption. It is within the discretion of the court whether to grant such motion. The party requesting anonymity faces a high burden of proof. 2.9 ADR in Financial Matters There are private options for alternative dispute reso ‑ lution, including mediation, arbitration and/or collabo ‑ rative law. Some courts have established county-specific media ‑ tion and neutral evaluation programmes. Some man ‑ date party participation and some are voluntary. The courts may also directly facilitate settlement confer ‑ ences. There are no material penalties for non-compliance, as most programmes are voluntary. Status of Agreement Reached via a Non-Court Process Such agreements are enforceable. However, they may not be enforced using remedies available to court orders unless the agreement is So Ordered and/or incorporated into a judgment of divorce signed by a judge.
If the proceeding concerns a domestic child abduc ‑ tion, the Parental Kidnapping Prevention Act and the Uniform Child Custody Jurisdiction and Enforcement Act apply; internationally, the United States is a treaty partner to the Hague Convention on the Civil Aspects of International Child Abduction. Domicile, Residence and Nationality See 1.2 Choice of Jurisdiction in Divorce Proceed- ings . 3.2 Living/Contact Arrangements and Child Maintenance Application to Court Either parent can file an application seeking a court order regarding the child’s residence and parenting access time, including the implementation of a parent ‑ ing access schedule. Neither parent has an automatic right to primary custody. The courts’ determination of such applications is dictated by the “best interests of the child” standard. The “best interest of the child” test means that the courts are required to balance the ability of each par ‑ ent to meet the needs of the child or children. The court will determine child custody based on the “best interest of the child” by evaluating a number of factors. Courts will make a finding on custody based on the totality of the factors. These factors can include whether one of the parents has been the primary caretaker of the child, stability, the existence of any substance abuse issues, domestic violence, physical health of each parent, any history of abuse or neglect, and any interference with the parenting rights of the other parent. In matters where one par ‑ ent has primary custody rather than joint custody with the other parent, the custodial parent is expected to encourage and foster the child’s relationship with the non-custodial parent. A child’s preference may also be taken into considera ‑ tion, depending on the age of the child. Legal Approach to Custody and Parental Responsibility New York courts decide custody based on the “best interest of the child” standard. If there is no court
3. Child Law 3.1 Choice of Jurisdiction in Children Proceedings Jurisdictional Grounds
The Uniform Child Custody Jurisdiction Enforcement Act (DRL Article 5-A; §75 et seq. (UCCJEA)) sets forth four available jurisdictional grounds: (i) the child’s home state; (ii) significant connection, which exists when a state has substantial evidence about a child as a result of the child’s significant connections to that state; (iii) emergency (abandonment or abuse); or (iv) a vacuum (when no other jurisdictional basis exists). Except in emergency cases, the UCCJEA eliminated a child’s physical presence in a state as grounds for exercising jurisdiction. DRL §76 (3).
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