Child Custody Exclusive Jurisdiction UCCJEA and UIFSA
Quick guide to determining which jurisdiction governs child custody and enforcement determinations
Does the state that issued the original (or most recent) order loses its exclusive, continuing jurisdiction after the child has moved from that state?The answer under both the UCCJEA and UIFSA is "not necessarily." Under the UCCJEA, the child's home state is essentially irrelevant to the question of whether the initial jurisdiction state retains ECJ to modify its own orders. The basic rule is that the state that made the initial order retains exclusive jurisdiction to modify that order until the child AND Mom AND Dad have all ceased to "presently reside" in that state. Stated differently, if the kid and one of the parents have moved out of the original state, but one of the parents still lives there, the original state still has jurisdiction to modify its custody orders. Once it's been determined, however, that everybody has left the state, it's as though a jurisdictional "reset" button has been pushed, and jurisdiction will then be determined as if there was a need to make a new "initial determination." Technically, the court will still be modifying the most recent order, but jurisdiction to make that revision to the order is determined by section 201(1) of the UCCJEA, as though there had never been a prior order at all. If the motion to revise the most recent order is filed more than 6 months after the child and one of the parents moved to the new state (and the non-custodial parent has also moved from the original state), then the kid's new home state will be the only one with jurisdiction to decide the motion. If, however, the motion is filed before the new state becomes the child's "home state" (i.e., the kid has lived there for less than 6 months), then the rules of section 201 make it probable that both the new state AND the old state will have jurisdiction to entertain the motion to modify the order, because both will probably meet the "significant connections" test of section 201(a)(2). The important thing to remember about this is that even if a state court loses its *exclusive* continuing jurisdiction, it doesn't necessarily mean that it won't have jurisdiction to modify its own custody orders. What's been lost will only have been its "exclusive" claim on jurisdiction to modify the orders. This analysis is only for custody cases. Under UIFSA, once everybody has left the state that made the original order, that state loses its jurisdiction to modify the child support order, and modifications have to be filed and decided in the Respondent's state.
Whether enforcement of the existing order is in the original state or the new home state?But now your real question was whether you can ENFORCE the existing orders in the original state or whether you have to go to the kid's new home state to enforce. Jurisdiction to enforce can exist either in the state that has jurisdiction to modify the underlying orders themselves AND in the state where the kids are physically located when the enforcement is sought. If you're trying to get an existing visitation order enforced, don't waste your time asking a court in a state where the kids are not being withheld to hold the withholder in contempt or to bring the kids back. If the order is simply being violated, use the interstate enforcement tools in the UCCJEA (specifically the "expedited enforcement" procedure) to file a petition in the state where the kid(s) is/are being withheld. That procedure will get your client a hearing literally one day after the petition is filed and most likely result in the kid's being delivered into the hands of your client at that hearing! PLUS mandatory attorney fees and costs and expenses. You didn't say where the kids are being withheld, but Illinois has expedited enforcement provisions