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What determines where I can file a
child custody case?
In order to for courts to properly
any domestic relations case, the state in which that action is instituted
must have proper “jurisdiction.” “Jurisdiction”
determines whether any particular court has the “power” or
ability to consider a particular issue that is presented.
Jurisdictional requirements are
different for different issues. It is important to note that with the
increasingly mobile American society, more than one state may have
jurisdiction over various issues that may be raised in the domestic
relations case. Thus, the power of a court to consider and make orders all
require some consideration of jurisdiction.
Jurisdiction for Initial Determinations of Child Custody,
Residency, Parenting Time and Visitation.
Jurisdiction for Child Custody,
Residency, Parenting Time and Visitation issues is governed by the Uniform
Child Custody Jurisdiction and Enforcement Act (UCCJEA). All 50 states have
some version of the child custody act as law.
Generally, these Acts (one or the other
of which have been adopted in all 50 states and which have been
substantially incorporated into a similar federal law) provides that a
State has the power to determine child custody and visitation issues under
one of the following situations when no action involving custody of the
child has been previously been filed:
(1)
The
child has lived in the state for a period of more than 6 months before the
commencement of the first action requesting a child custody determination,
(this is called “home state” jurisdiction) or
(2)
The
child had lived for more than 6 months in one state and that residence entered
within 6 months before the initiation of the first child custody action and
the child is absent from that state because the child was removed or retainedby a person claiming the child’s custody
or for other reasons, and a parent or person acting as parent continues to
live in the “home state” (this is called “extended home
state” jurisdiction); or
(3)
If
the child has not lived in any one state for more than 6 months within 6
months before the first child custody case is filed, (there is no
“home state”), and no action involving custody of the child has
previously been filed, then a State may
assume power over the child if both of the following are true: First, the
child and both of the child’s parents, or the child and at least one
of the child’s parents, have a “significant connection”
with that state, and Second, there
is available in the state substantial evidence concerning the child’s
present and future care, protection, training, and personal relationships.
(“significant connection” jurisdiction).
If there is an “emergency
situation,” such as abandonment of the child by the child’s
parents, a court in the state in which the child is then living may
exercise special “emergency jurisdiction” to protect the child
until a court with appropriate jurisdiction can exercise that jurisdiction
(“emergency” jurisdiction).
For purposes of child custody,
residency, parenting time
and visitation determinations, it is important to know where the child lives—not where
either the parent has lived, although it is not always determinative of the
state that has jurisdiction over the case. Although the parent against whom
a child custody residency or parenting time action has been filed may not
have any connection with the state in which the action is filed, if the child satisfies the UCCJEA
requirements, sufficient jurisdiction is established.
Jurisdiction for Modification of Child Custody, Residency,
Parenting Time and Third Party Visitation.
After child custody and visitation
issues have initially been determined, the court which
made those determinations retains the power to make orders regarding
those issues – regardless of whether one of the parties moves outside
that state. If both parties move
out of that state, however, the initial court may lose its power to deal
with continuing child custody residency, parenting time and visitation
issues. In such a case, the state where the child has lived for 6 months or
more would become the appropriate place for further child custody and
visitation litigation or the state that has the more “significant
connections.”
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