Interstate Child Custody
Child custody often involves complicated and emotional family situations. Custody becomes even more complicated when one parent lives in a different state from the child.
Every state sets its own child custody laws. Interstate child custody cases present practical issues of enforcing child custody orders in another state. Although the U.S. Constitution requires states to give full faith and credit to orders issued in other states, enforcement can cost you a lot of time and money.
Here is some information about the issues surrounding interstate child custody.
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How Interstate Child Custody Issues Arise
The phrase “interstate child custody” might immediately evoke images of parental kidnapping.
But interstate child custody issues can arise in many situations besides kidnapping, including when a parent:
- Moves with the children before the divorce is finalized
- Seeks to move with the children after the divorce decree
- Moves alone and petitions for custody to move the children to the new state
- Flees domestic violence, then seeks custody of the children from the accused abuser
- Refuses to return the children after they visit the parent in another state
- Moves and then seeks modification of a custody order from their home state in the new state’s court
These situations raise many procedural and substantive issues, including which state’s laws will control the outcome of the case and whether a foreign state can require your appearance in its court.
The Uniform Child Custody Jurisdiction and Enforcement Act
Most states — excluding Massachusetts — have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
In these 49 states, the Uniform Act harmonizes laws governing child custody disputes. For example, this allows judges in Georgia and Florida to use the same set of laws to determine who should hear a dispute between a parent in Georgia and another parent in Florida.
The UCCJEA provides a process for judges to determine issues such as:
- Choice of law
- Authority to issue emergency orders
- Power to modify orders from another state’s courts
The UCCJEA does not tell judges how to decide custody disputes. Instead, it tells them whether they have the authority to hear the dispute. It also tells them which state’s laws to apply to decide the case.
Jurisdiction in Interstate Child Custody Disputes
Jurisdiction refers to a court’s authority to hear a case. In most cases, a state has jurisdiction over people and disputes that happen within its borders. But when parents live in different states, only half of the dispute happens within each state’s borders.
The UCCJEA simplifies jurisdiction by eliminating concerns about where the children or parents live. Instead, it grants jurisdiction to the child’s home state.
Under the UCCJEA, the child’s home state is where the child has lived for at least six months before filing the action. If the child is fewer than six months old, the home state is where the child has lived since birth. This provision prevents parents from shopping for the most favorable laws and judges.
Suppose that a child lived in Georgia for more than six months before their parent moved the child to South Carolina. Georgia remains the child’s home state. As a result, Georgia has exclusive jurisdiction over any child custody decisions affecting the child.
This could change after the child establishes a new home state in South Carolina by living there for at least six months. Parents with an interstate custody dispute only have six months to start a case in the child’s home state before its courts lose jurisdiction over the case.
Losing Jurisdiction in Interstate Child Custody Cases
A state can decline jurisdiction in interstate child custody cases. This usually happens when the legal analysis establishes a state as the child’s home state, but the parents and child no longer have a connection to the state.
For example, suppose that a child’s home state under the UCCJEA is Georgia. But one parent moved to Alabama with the child, and the other parent lives in Florida. In this case, the court in Georgia might decline to exercise jurisdiction because it has no access to the parties or evidence necessary to resolve the case.
Alternate Jurisdictions in Interstate Child Custody Cases
Another state can exercise jurisdiction over a case under three circumstances.
A court can exercise jurisdiction in an emergency case. If the court must act to safeguard the child’s safety, health, or wellbeing, the court can take jurisdiction over a case.
In most situations, the court will respect the child’s home state by only issuing temporary orders.
If the home state declines to exercise jurisdiction, another state can exercise jurisdiction over the case if the child has significant connections to people in the state.
Thus, in the example above, a court in South Carolina could exercise jurisdiction over a case involving the child, since the child lives there.
No Other Jurisdiction
In some cases, no jurisdiction or multiple jurisdictions can take the case. In this situation, the first state to receive the case can retain jurisdiction over it. This can create a race to the courthouse if both parents move.
Modifying Orders in Interstate Child Custody Cases
If a state issues a custody order in a case, it remains the only state that can modify it. Again, this discourages shopping. A parent cannot move a child to New York after a divorce to try to get a more favorable custody order. The only court that can modify the order is the original court that issued the order.
Dealing with Interstate Child Custody Cases
Interstate child custody cases raise significant issues of law. They also raise significant practical issues. Hiring lawyers in multiple states can get expensive. Travel to and from out-of-state court hearings can also impose a significant burden on your time and budget.
In many situations, raising the jurisdictional issue will push the courts in the relevant states to confer to determine jurisdiction. If your case has already reached a final order, that court has sole authority to modify or enforce its order even if your ex-spouse moves to another state.