Child custody is one of the most critical topics for those facing a divorce or separation. It is complex, costly, and time consuming to litigate. Losing child custody fills parents with dread. You may experience severe anxiety just thinking about it…and you may be confused as to how to protect yourself and your children…and where and when to begin.
To help you, I will be proceeding through the issues that come up in child custody matters in the order you may confront them.
Understanding Child Custody Jurisdiction
What I want you to take away from this article:
- Watch the calendar. Six months of the kids living in a state is a pivotal and dispositive time frame. If your spouse takes the kids to another state, do not let the time get away from you while you are working on the marriage. Do not fail to take action…even if it is going to piss your spouse off. You want custody decided in your state.
- If your spouse moves to a different state, register your orders in that state. If your spouse spends a substantial amount of time in yet another state – say where family resides – register your orders in that state too.
Which State Has Child Custody Jurisdiction?
The first thing the court has to do is determine whether it has jurisdiction over your child custody matter, so this post is to explain how jurisdiction works in child custody.
There are two types of jurisdiction, or power, that courts must have to decide a case:
- subject matter jurisdiction,
- personal jurisdiction.
Subject Matter Jurisdiction
A court has subject matter jurisdiction over all proceedings described in its grant of authority from the legislature. So, for example, a court may have jurisdiction over cases where the amount in controversy is over a certain amount of money or over cases where the parties live in different states or, in this instance, over family court matters, including child custody.
Some courts can only hear family law matters, and other courts can hear both family and civil (monetary) cases.
Subject matter jurisdiction is not something that will normally be of concern to you as your lawyer should know where to file.
A court has personal jurisdiction over people who live in the state in which the court is situated. So, for example, a Massachusetts court has personal jurisdiction over Massachusetts residents, including children who live there.
But what happens when Mom and Dad get divorced and end up living in different states? Let’s say Mom and Dad lived in Oregon for a year prior to filing and the Oregon court enters child custody orders granting joint custody. Then Dad moves to Nevada, becomes a Nevada resident and after a couple of years, decides he is unhappy with the Oregon orders. While he has the kids for a month over summer vacation, he decides to file for sole custody in a Nevada court. Since he is a Nevada resident and has joint custody of his kids who are currently living in the state, it looks like he should be able to do that, right?
Thankfully, no, he can’t. The Uniform Child Custody Jurisdiction and Enforcement Act (there’s a mouthful!), “UCCJEA,” has been adopted or is pending in all fifty states and some US territories. Interstate custody battles have been known to drag on for years to the clear detriment of the children. The UCCJEA is meant to short circuit those battles.
The UCCJEA says that the courts of the child’s “home state” have continuing and exclusive jurisdiction over custody issues. The “home state” is the state where the child lived for six consecutive months prior to filing, or since birth if the child is less than six months old. If the child has not lived in a state consecutively for six months, the court will look to see whether its state has “significant connections” with the child and at least one parent, and there is substantial evidence located in that state that the court can consider in making a custody determination.
So, in our example above, the Oregon court is the only court that can modify the custody orders.
What if, instead, the dad stays in Oregon and the mom and kids move to Nevada? The kids visit Dad often in Oregon, but they reside in Nevada. Can mom file for a modification in the Nevada courts based upon her and the kids’ residence in that state?
Again, no, she cannot. Even though the kids reside in Nevada, Dad is still involved with them, so Oregon still has a significant connection and should not relinquish jurisdiction.
If both parents move out of Oregon, once the kids have resided in a state for a six-month period, that state has jurisdiction.
Let’s say Mom and Dad decide to separate, Mom takes the kids to live with her folks in California, and the kids reside with Mom in California for six months. In that case, California is the “home state” even if the kids had lived in Oregon their whole lives. To avoid having California become the home state, Dad should have filed for custody orders in Oregon within six months of mom and the kids moving.
But how is a state to know whether there is an existing custody order in place? The UCCJEA provides a registration procedure for custody orders. So, returning to our example, Mom should register the custody order from Oregon in Nevada.
If Dad then decides not to send the kids back to Oregon after summer break, there is an expedited, fast-track procedure for returning the kids to Mom. If the custody order is not registered in Nevada, Dad has more defenses available.
As with all things legal, there are tons of exceptions, qualifications, limitations, etc. that can complicate matters. This article is meant solely as a guide to understanding basic child custody jurisdiction. It is not intended to be or replace specific legal advice from a retained attorney, nor is any attorney/client confidentiality implied or conferred in comments or discussions associated with this article. Consult with your own attorney to have your questions and concerns addressed.