Baby on Board

We all have to be somewhere. And in law, a person’s residence often determines which court has jurisdiction over that person’s day-to-day life and personal affairs. But what about a pregnant, married woman who unilaterally moves out of state and gives birth in transit before reaching her new state and establishing a residence there? Which state would have jurisdiction to decide whether it is mom or dad that should have custody of the newborn child? In which state does the child reside?

These questions were addressed in the recent case of Dalcollo v. Dalcollo. Mom was nine months pregnant when she unilaterally decided to move with her parents from New York to South Carolina. While en route to South Carolina, mom’s water broke and she delivered a baby boy in a Maryland hospital. Despite dad’s objection, mom continued with the newborn child to South Carolina. Dad filed for divorce in New York two days after his son was born and asked the court to order the mother to return the child to Suffolk County, New York, the location of the couple’s marital residence.

Under New York’s Domestic Relations Law, a New York court has jurisdiction over a child custody or visitation proceeding if New York is the child’s “home state.” If the child is less than six months old, the child’s home state is “where the child has lived since birth with a parent.” In the situation described above, the Suffolk County judge concluded that the baby had lived in more than one state since birth and consequently lacked a home state. The judge therefore decided that (i) where there is no home state, (ii) where there is no other state which has been the home state for six months, and (iii) where there are no significant contacts to any state, New York as the state of marital residence “may take jurisdiction based on the best interests of the child.” Accordingly, the judge ruled that mom had to bring the child back to Suffolk County or temporary custody would be granted to dad.