For child custody issues to be determined by the court, the court must have custody jurisdiction to rule on your case. But if parents live in different states at the time of their divorce, which state has jurisdiction in the case?
This is decided by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which helps insure custody issues are resolved in the correct state. Under this act, a child's home state has authority in custody issues and decisions. Additionally, a 6 month period of residence prior to the start of a custody case defines the home state. For children less than 6 months old, the home state would be considered where the child has lived since birth with a parent.
There are also other issues that arise concerning custody jurisdiction, such as the parent taking the child to another state to achieve a more favorable outcome in the custody decision. The following questions and answers from the legal expert address this issue and more.
Tiffiney's Question: I moved from California to Nebraska two months ago. There is no court ordered custody, and neither party has filed for divorce. I want to go back to California to get my things. If my ex files while I am there, can he make me keep my son in the state?
Brette's Answer: If your ex files for divorce while you're out of state, the court has to first give you notice of the motion for custody, and you have a period of time in which to respond or appear. It sounds like you're planning a short trip and it doesn't sound like it should be a problem. You should however be clear with your spouse that you are not leaving the state for any lengthy period of time and that you will be back. If you just pick up and leave it is possible he could reasonably believe you've fled with your son and could seek an emergency order of custody. It would be a good idea to consult with an attorney in Nebraska to determine if you're going to meet the residency requirement there for divorce and to discuss custody.
Sara's Question: I was granted full physical and legal custody with no visitation for my ex on a restraining order protecting my child and me. Can he get a court order granting him custody afterwards in a different state?
Brette's Answer: He can, but only if jurisdiction has been changed. You need a lawyer who can navigate the UCCJA.
Anna's Question: My husband filed a divorce in his home state with the papers stating that "there are no children of the marriage" even though we have a daughter together (he did not want rights to her & we had her before we got married). He asked for a continuance at the 1st court hearing because now he wants parental rights. However, my daughter resides with me in a different state & I've been told to file for divorce here since my state will have jurisdiction over her, even though papers have been started in his home state. Can I do that?
Brette's Answer: Yes. Custody cases are generally heard in the child's state of residence.
Lesa's Question: My daughter gave birth to a baby girl almost a month ago. We live in Kentucky and the father of our grandchild lives in another state. We found out he had nothing to do with our daughter during her pregnancy, was not there for the birth, and has made no attempt to send the baby anything or see her. The father is mentally disabled, on probation for drug possession, and has a history of molesting. His father (who is helping him with this) spent 17 years in prison for crack cocaine, and has only been out just 2 years. My daughter would like to allow visitation, but wants supervision. How should this be handled?
Brette's Answer: You should get the case moved to your state since that is the child's home state. Then it all happens there. It sounds like a difficult situation and supervised visitation seems the best plan. Parenting classes would also be a good idea for the father. If he's not already getting drug tests, that's another thing to ask for.
Angela's Question: I have been divorced for 4 years and have two minor children. I was divorced in the state of Illinois and moved after the divorce to Ohio with the two children. We have a joint custody agreement with me being the custodial parent. My ex wants custody of the youngest child and has filed for sole custody in Illinois. Do I have to find an attorney in Illinois and deal with long distance and travel, even though the kids have lived here for 4.5 years?
Brette's Answer: From what you've said, it sounds like the case should be heard in Ohio. Ask to have it transferred under the Uniform Child Custody Jurisdiction Act.
Dana Asks: I have primary custody of my 14 year old son. The divorce happened in Missouri, but our son has lived with me in TN for 3 years. My son went to visit Dad for the summer and now he is saying he wants to stay there. I told him and my ex that I want him to come home, and he can go back if he is not happy here by Christmas time. But mind you he did not even want to go see his Daddy this summer and now I get this, so very confused. If I have to go back to court, can we file something here in TN since it's my son's home, instead of going back to Missouri?
Brette's Answer: First of all, what your son is doing is really very common. It's the kids' version of "Love the One You're With". He's with his dad and has adjusted. He might want to go back after he spends time with you or not. Yes, you can file in your home state since that is your child's state of residence. Good luck.
Mattie's Question: I have been living in Texas with my two minor sons for a year now. My husband, who resides in Indiana, filed for divorce there. I was told that Texas is considered the home state of the two children since they have been living here for 6 months or more. Therefore, when it comes to matters of child custody/support, only a court in Texas is allowed to rule. The final divorce, and division of property/assets is ruled by the court in Indiana (where he filed), however if there is disagreement in regards to custody/support then I should seek help in Indiana and have that representative put in an order to the court to have the child issues resolved by the residential state, which in this case is Texas. My question: is that information right in regards to the home state and the jurisdiction the home state has to rule over these matters (i.e. child custody & child support)?
Brette's Answer: The law that governs your situation is called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which provides a consistent approach to child custody and visitation among states. A 6 month period of residence defines the home state, which will have the authority in custody issues and decisions. You need to discuss your situation with an attorney, but you can file for custody in Texas (click here to read the relevant Texas Divorce Laws). Child support is not covered under the UCCJEA; however once you have an order of custody you can then file for child support. An attorney may advise you that it makes the most sense for you to file for these items in Texas so that if you need to enforce them it will be easy to do so. It is best that you have an attorney review any papers about your divorce before you sign them.
Debi's Question: My ex was arrested six years ago for attempting to hire a man to murder me and his best friend. I got a temporary custody order for both children and a PPO after his arrest. His brother lived with us and I told him he needed to leave immediately. He would only leave if I allowed him to take my son with him to Boston - where his family lived. My daughter remained with me. My ex went to prison for 3 years and his family prevented me from having any contact with my son. I recently went to court in Louisiana to get custody of my child, but my ex got a lawyer and is trying to claim that I need to file any custody petition in MA. This was my son's home state until he was taken against my will. Which state would have custody jurisdiction?
Brette's Answer: The fact is your child has lived in that state for years and it is his home state under the law. It would be best to hire an attorney in that state who could move things along for you and present the best possible case
Carol's Question: During our divorce, I was awarded custody and the judge gave me permission to move to my home state. My lawyer recommended getting the jurisdiction moved to my home state. How do I do this?
Brette's Answer: Go to court and ask for it. Good luck.
Anndra's Question: I divorced in Texas, but neither my ex nor I have lived in the county of the divorce for 2 years. In addition, neither of us has lived in Texas for the last 3 months, and our children are with me due to a temporary injunction for domestic abuse in Florida. How can I get a change of venue to Florida?
Brette's Answer: It sounds to me like your state would have emergency jurisdiction under the Uniform Child Custody Jurisdiction Act. The children are in danger; they're in your state and have been for at least a while. It certainly doesn't hurt to go file in family court in your state.