Interstate Child Custody

When a divorce case involves parents who live in different states, parents must consider which jurisdiction is the proper place to decide issues of child custody. If a case is filed in the wrong jurisdiction, it can be dismissed. Moreover, if a valid objection to jurisdiction is raised after custody orders have been improperly entered, those orders can be deemed void.

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is the law which governs custody disputes which involve parents who reside in different states. In 1997, the UCCJEA replaced the UCCJA, originally enacted in 1968. The UCCJEA has been adopted by 49 states (legislation pending in Massachusetts) as well as the Virgin Islands and Guam (but not Puerto Rico). The UCCJEA is designed to provide uniformity in child custody disputes across state lines.

The UCCJEA provides that the proper jurisdiction to make an initial custody determination is the “home state” of the child. "Home state" is defined as the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period. While the definition appears to be relatively straightforward, the issue of the child’s home state is often litigated, particularly when the child has lived in several states or where it isn’t clear who the residential parent is.

The UCCJEA also provides that a state which has entered an initial custody order has continuing, exclusive jurisdiction over all subsequent custody issues. That state will retain jurisdiction unless neither of the parents or the child reside in the state anymore. Also, the court which entered the initial custody order may decline to exercise jurisdiction due to the fact that the parties lack of significant contacts within the state, or because it would be inconvenient to the parties for the court to retain jurisdiction.

While the above rules generally apply with respect to custody orders (both initial and modification), the UCCJEA also provides an exception for emergency order. Specifically, the UCCJEA allows a state which would otherwise lack jurisdiction to enter a custody order when the immediate welfare of a child is at risk, particularly in cases of domestic violence.

The laws regarding interstate child custody are complex, and filing in the wrong state can be time consuming, expensive, and fruitless. The attorneys at Kollias & Giese, P.C. have extensive experience in litigating interstate custody disputes, and can provide you with guidance before mistakes are made. If you and your spouse live in different states, have recently moved, are planning a move, or you are otherwise unsure which state your case should be filed in, you should contact an attorney at Kollias & Giese, P.C. to discuss the facts of your case.