Parental Kidnapping

The standard for getting emergency custody may be different depending on whether New York is the child’s home state. A child’s “home state” is defined as the state where the child has lived with a parent for at least six months in a row (consecutively) right before a child custody case is filed. For a child under six months old, the home state is where the child has lived since birth.¹

If New York is your child’s home state, then you can apply for temporary custody in New York as part of a custody petition. If you are hoping to get an ex parte temporary custody order, which is issued without the other parent being notified ahead of time, judges will usually only grant it in extreme situations. You may need to prove to the judge that your child is in immediate (imminent) danger.²

If New York is not your child’s home state, you may file for temporary emergency custody (emergency jurisdiction) in a New York court as long as your child is currently living in the state and it is necessary in an emergency to protect your child, a sibling, or yourself as a parent of the child.³  If there is no custody order from another state, then a New York judge could issue a temporary emergency custody order that could stay in effect until the home state issues an order that says otherwise. After six months, if the child continues to live in New York and no other custody petition is filed in another state, then the temporary emergency order could become a final order.³ 

If there is already a custody order from another state, the New York temporary emergency custody order will state a time period that the order is in effect with the purpose of allowing you to go back to the court that issued the original order to try to change (modify) it. If the New York judge believes that the child is in immediate (imminent) risk of harm, however, the temporary emergency order can remain in effect until the original state’s court takes steps to assure the protection of your child. The New York judge is supposed to communicate with the judge in the home state to decide how to best protect the safety of you and your child and to determine how long the temporary order will last.⁴

We recommend that you get help from a lawyer. For information on legal resources in New York, please consult our NY Finding a Lawyer page.

¹ NY Domestic Relations Law § 75-a(7)
² See NY Courts website for information about filing a custody petition
³ NY Domestic Relations Law § 76-c(1), (2)
⁴ NY Domestic Relations Law § 76-c(3), (4)