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UCCJEA and The Proper Forum For A Custody Dispute

Posted by attorney David Canale

Interstate custody disputes are more and more common occurrences in the practice of family law, due largely to the increased mobility of our society. When parties are divorced in one state and one parent later moves to another, the parties subsequently will often question where a future modification of custody case should be filed.

Fortunately, that question has largely been answered with the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). This set of statutes, which generally has been adopted throughout the United States, provides a framework for state courts to determine under what circumstances they have jurisdiction to enter custody orders. The Act generally provides that a child’s home state (where the child has lived for the last six months) has "subject matter jurisdiction," i.e., the authority, to resolve initial custody disputes. This generally occurs in the context of the divorce. After the entry of an initial order, that state retains "exclusive continuing jurisdiction" to address all further changes of custody, until both parents and the child no longer reside in that state.

A recent Georgia Court of Appeals case provides additional guidance on this issue. InDelgado v. Combs,the Court reversed a Georgia trial court’s refusal to set aside its modification of an initial custody order entered by a Kansas court. In that particular case, the parties had been divorced in Kansas, and the father subsequently moved Georgia. The initial order gave primary physical custody to the mother and also established a visitation schedule for the father. The original custody order was modified about six months later and provided that physical custody would be transferred to the father for the upcoming school year. About two years after the divorce, the father filed a petition in Georgia to permanently modify custody and visitation. After some procedural "wrangling," the Georgia Court permanently modified the Kansas custody order and gave sole physical and legal custody of the child to the father and limited the mother’s visitation to only that approved by the father.

The operative issue here was that the Georgia Court undertook jurisdiction of the custody case initially under the temporary emergency jurisdiction provision of the UCCJEA and later found that the mother was not a resident of Kansas (remember that the father had already left that state and moved Georgia). After reaching this conclusion, the trial court also concluded that it was a more convenient forum for the custody case, and it thereafter entered its final order. The mother then filed a motion to set aside the trial court’s order. That motion was denied.

The Court of Appeals reversed, finding that the trial court erred in determining that it had subject matter jurisdiction over the case. The Court ruled that there was no evidence that the mother was not residing in Kansas at the time the case was filed, that the trial court had erred in finding so, and that it had erred in concluding that it had subject matter jurisdiction over the custody dispute.

Custody disputes are extremely complicated, and there is no question that experienced legal assistance will be invaluable in obtain the best outcome for any particular set of circumstances. If you are considering a change of custody action, or even an initial custody action, our firm can provide the assistance that you need to assure you the best chance of success.

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