The children reside with their father in VA and have done so for more than 3 years. He refuses to change jurisdiction from NH. He uses his military status as a reason. I was recently granted an emergency ex-parte in CA, where I reside, the oldest is cutting and attempting suicide in her fathers care.( I am the children's mother). Both children 15 and 10 filed a declaration statement requesting to live with me. My oldest will be 16 in December and the other will be 11 in January. The ex-parte was ended, the CA courts say I need to file for a jurisdiction change and then custody modification in the state of VA where the children live.
The Uniform Child Custody Jurisdiction Enforcement Act, UCCJEA, applies here. As a uniform act, the law is the same in CA as VA as NH.
CA may assert emergency jurisdiction to protect the welfare of a child, but that last only so long as needed to stabilize the situation and move it to the state with regular jurisdiction. Va. Code § 20-146.15.
The Servicemembers Civil Relief Act, SCRA, can protect a servicemember from changing residences or domicile due to military orders with regard to personal and income taxes, etc. It has no bearing on UCCJEA. Va. Code § 20-146.13 uses the phrase "continues to live." The whole provision is "A. Except as otherwise provided in § 20-146.15, a court of the Commonwealth that has made a child custody determination consistent with § 20-146.12 or 20-146.14 has exclusive, continuing jurisdiction as long as the child, a parent of the child, or any person acting as a parent of the child continues to live in the Commonwealth."
So, the first course of action would be to register the NH order in VA for enforcement. Va. Code § 20-146.26. This registration will at least allow VA courts to enforce the order.
Then, you can petition to modify the order in VA.
If the children have resided in Virginia for more than six months, Virginia would be their "home state" for purposes of determining jurisdiction. If you wish to change custody, you would need to file a motion in Virginia. At this point, under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) the only way California could assume jurisdiction (or for Virginia to give up jurisdiction) would be for the children to reside there for more than six months, as the California court apparently has made it clear that they will not assume jurisdiction at this time.
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