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Child Custody Jurisdiction

Posted by attorney Michael Fluke

Since I have started answering questions on Avvo, I find a unusually high number of questions regarding child custody jurisdiction. Usually this comes into play when a couple splits up and one of the parties removes the child or children from the state. A great majority of states have adopted the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). The UCCJEA was created to give courts in competing states guidance on how address child custody when there are competing law suits for divorce, paternity or child custody in two different states.

To determine what state has Original Jurisdiction to determine custody (now called timesharing in many states), the first thing you need to look at is which state is the Home State of the child. There can only be ONE Home State. The Home State is defined as the State the child lives in at the time of commencement of the proceeding or within the 6 months prior to the commencement of the proceeding if the child has been removed from the state. In other words, you cannot remove a child from the state, immediately file in the new state and call the new state the Home State.

You may be able to get a divorce in the new state if, and when, you meet that new state's residency requirements, but that state should not address the child custody issues. Note, this does not save you if you wait and do nothing! After six months in the new state, it is my opinion that the new state would have UCCJEA jurisdiction. Sometimes, the new state can get UCCJEA jurisdiction even sooner than the 6 months. If the parent who removes the child files and action in the new state and you then file in the Home State months later, courts may take the view that you have filed merely for harassment. The two courts are authorized to speak with one another and discuss which court will take jurisdiction. This is not to say it is the proverbial race to the courthouse, because it is not, but courts have taken a dim view on late filings which indicate motives other than one's desire to have their child back. There are further exceptions to the general rule when the court determines that a great deal of the witnesses are in the new state.

The concept is called Forum Non Convenience and on this basis, the judge in the Home State can decline Original Jurisdiction and allow the proceedings to take place in the new state. What does this all mean? If a parent removes a child or children from the state where you last lived together and raised your child/children, and this was done so without your consent, DO SOMETHING NOW. Do not wait to work something out. Consult an experienced local Family Law attorney immediately and, if appropriate, file an action so you can protect your rights! I have had clients forced to go across the country to fight for their children. I have also had parents forced to either return their children to the Home State or return to the Home State with their children.

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