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Daniel Solutions
Daniel Solutions, Divorce Lawyer
Category: Family Law
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Experience:  Practicing Attorney for over 15 years
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My husband has a daughter (almost 4 years old) who was born

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My husband has a daughter (almost 4 years old) who was born to his ex-girlfriend in Massachusettes (they never married). We just settled their custody and court case in Mass court. As part of the agreement, he has joint legal custody and she is permitted to move only out of Mass to return to NY State. She has indicated that she is considering moving back to NY and we believe her because we have heard that she may be reuniting with her ex boyfriend here.

Our dilemma is this: Because the child resided in Mass, my husband is paying a ridiculous amount of child support, which is well over NY guidelines. His ex-girlfriend also has a history of not being able (mentally, financially, or emotionally) to live on her own without a man (she always moves back in with her parents in Mass). If she were to move back, we are afraid that if things didn't work out with her boyfriend, that she would uproot his daughter and move her back to Mass and into her parent's home which we both strongly believe is unfit (her step-father is also her ex-fiance). I have heard that usually a child needs reside in NY for 6 months before legal action can be pursued, but given the unusual circumstances, is there any action that we can take to prevent the mother from moving out of state again? And what action could we take to get his child support more in line with NY guidelines?

Thank you so very much for your time and thought into this matter. I look forward to hearing from you on the direction you feel we should take.
Submitted: 2 years ago.
Category: Family Law
Expert:  Daniel Solutions replied 2 years ago.

Hello,
Thank you for allowing us to assist you with this problem.

 

I am sorry to hear you are facing this problem.

 

Under the UCCJEA it would be required that the child live in NY for at least 6 months prior to the NY court having legal jurisdiction to modify the custody order. The 6 month requirement can be waived in instances of immediate emergency of danger for the child where NY could issue a temporary order but MA would ultimately get to decide the issue of custody modification unless the child has been in NY for the 6 months.

 

Even if the child did return you can still file the modification of custody but would have to do so on MA asking the MA court to force the return of the child to NY. Once the mother moves to NY from MA that is allowed in the current court order but your order does not say anything about a move back to MA so that could be enough to at least get you past the first problem of proving a substantial change in circumstances allowing the court to get to the second part of the problem which is what is in the best interest of the child. It is this second part (best interest of the child) where you would raise issues such as the stepfather and any other inappropriate conditions the mother has exposed the child to since the last court order of custody.

Daniel Solutions, Divorce Lawyer
Category: Family Law
Satisfied Customers: 9934
Experience: Practicing Attorney for over 15 years
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