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Interstate Custody Issues

Posted by attorney Gary Port

All fifty states have enacted the Uniform Child Custody Jurisdiction Act, also known as the UCCJEA. The purpose of the statute is to provide some degree of uniformity for determining which state will have jurisdiction over a child custody/visitation matter. This statute is different from the Parental Kidnapping Prevention Act, which is concerned with the enforcement of the order. The UCCJEA is concerned with determining which state will have the original jurisdiction.

The New York version of the UCCJEA is found in the Domestic Relations Law Article 5-A. Basically, New York courts will take jurisdiction over a child custody or visitation matter if:

(1) New York is the home state of the child, or the child has been in New York for six months before the commencement of the proceeding; or

(2) Another state court does not have jurisdiction or the home state has declined jurisdiction and the child and at least one parent has a significant connection with New York; or

(3) No other court would have jurisdiction.

Now, let’s put this into English. If the parents reside in New York and the child lives in New York, then clearly a New York court can decide custody and visitation.

But, if Mom and Dad live in Nevada, Dad can’t run to New York in order to get a custody order. The child needs to have lived in New York for at least six months to establish jurisdiction.

If the couple lived in New York, and the mother suddenly moves to Florida, the father should file his petition in New York before the six month clock runs. If he waits until after six months, then Florida would have jurisdiction.

An issue I came across recently had to do with a cross-state child custody order. Congress has passed a law to prevent a parent from grabbing the child and rushing to another state in order to get a modification to the custody. The typical case involved one parent, say Dad, getting custody of the child in their home state. Mom moves to another state. Dad sends the child to Mom for visitation and she runs to the court in her new home state to get a new child custody order. The new state decides that it is not bound by the law of the home state and grants custody to Mom.

These types of cases led to a rash of parental kidnapping. This type of forum shopping by parents created confusion and the courts by allowing it to happen actually encouraged these kidnappings.

This parental kidnapping issue became such a problem that Congress passed the Parental Kidnapping Prevention Act (“PKPA.) The Congress passed 28 USC 1738A (“Parental Kidnapping Prevention Act" hereinafter “PKPA") to ensure that child custody orders from one state were honored and enforced in another state. The Supreme Court, in a 1988 decision, Thompson v. Thompson 484 US 174, 180 (1988), observed that “normally under the Constitution all decisions rendered by one state would be given full faith and credit by a sister state, however, this was not always the case with custody determinations. This because custody orders usually are subject to modification as required by the best interests of the child. As a consequence, some courts had doubted whether custody orders were sufficiently “final" to trigger full faith and credit requirements." This led to a situation where each state felt it had the ability to modify another state’s custody order if that court felt it was in the best interests of the child.

The PKPA creates a uniform standard for determining jurisdiction over interstate custody disputes. A custody order which is issued in conformity with the PKPA must be afforded full faith and credit. Where a State has exercised jurisdiction consistently with the provisions of the PKPA, no other State may exercise concurrent jurisdiction over the custody dispute even if it would have been empowered to take jurisdiction in the first instance and all States must accord full faith and credit to the first State’s ensuing decree.

The key is that the court order from the home state must be issued in conformity with the PKPA. If it is, then the new state generally can’t modify the original custody order.

I’ve paraphrased the statute below, if you’d like to wade through the actual statue follow this link:

http://uscode.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001738—A000-.html

1.A custody or visitation order made by a court is valid where:

a.It was issued by the Home state at commencement of the action; or

b.No other state has jurisdiction and it is in the best interests of the child for the new court to exercise jurisdiction; and

i.the child or one parent has significant ties to the state and

ii.there is substantial evidence concerning the child’s present or future care/protection, training and personal relationships.

c.The must be Child physically present in the state:

i.Having been abandoned or

ii.It is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse.

d.No other state would have jurisdiction or another state has declined jurisdiction due to more appropriate forum and it is in the best interests of the child.

e.Or the court has continuing jurisdiction.

2.The jurisdiction continues if the decision is in conformity with the statute as “as long as the requirements of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or any contestant."

3.Before any custody or visitation determination can be made there must be notice to the other side.

4.MODIFICATIONS: Another state can modify a custody determination if:

a.It has jurisdiction to make such a determination and

b.The court of the other state no longer has jurisdiction or has declined to exercise it.

  1. A court shall not exercise jurisdiction if there is a pending proceeding in another state.

  2. A court of a state shall not modify a visitation determination made by a court of another state unless the court of the other state no longer has jurisdiction to modify such determination or has declined to exercise jurisdiction to modify such determination.

Even with my paraphrasing it, it is still a little dense. So, let’s look at how the statue works. Mom and Dad are living in Nevada. Under the laws of that state, they and the child are residents of the state. Mom gets custody and Dad gets visitation. He then moves to New Jersey. On a visit with Dad, he goes to the New Jersey court and claims that he is the better parent and should get custody. The New Jersey Court, looking to the PKPA must first determine if the Nevada court has issued a proper order. Since both parents were residents of Nevada as was the child, Nevada had jurisdiction. Both parents were present and represented by counsel. Next the New Jersey court will determine if the Nevada court still intends to retain jurisdiction. Since the judgment of divorce states that Nevada will retain jurisdiction, New Jersey legally cannot modified the judgment of divorce.

New York as well as the other 49 states have passed the Uniformed Child Custody Jurisdiction and Enforcement Act (“UCCJEA"). This is law is complimentary with PKPA. The UCCJEA defines when a court has jurisdiction over a child custody case. Generally speaking, the child must be resident in the state for six months before a court will be allowed to take jurisdiction.

There is an exception. It has to do with emergencies. In New York, the UCCJEA came be found in the Domestic Relations Law.

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