Where do I file if I want to change a child custody order?

In order for courts to properly hear 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 retained by 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.”

Venue for Modification of Child Custody, Residency, Parenting Time and Third Party Visitation.

If both parents and the child continue to live in Kansas after a divorce (or determination of parentage), the question often arises where are “post–decree” motions to change the previous orders heard? This is a question of “venue” rather than “jurisdiction.” All Kansas district courts have the same “jurisdiction.” Which district court will hear a post–decree motion is governed by the Kansas “venue” statutes.

When a divorce is first filed, Kansas law provides that the case must be filed:

(1) In the county in which the petitioner is an actual resident at the time of filing the petition;
(2) In the county where the respondent resides or where service may be obtained; or
(3) if the petitioner is a resident of or stationed at a United States post or military reservation within the state at the time of filing the petition, in any county adjacent to the post or reservation.

Unless the judge assigned to the case decides that the case belongs in another county, that case will remain filed in the county in which the divorce was first filed — even after the divorce decree is filed, the former spouses move elsewhere in Kansas, and post-decree motions to modify are filed. KSA 60-607

Kansas does not have any statute that requires post-decree motions be heard anywhere other than where the original divorce/parentage action was filed. But case law recognizes the trial judge’s inherent authority to change venue to another county if that judge believes it is appropriate.

You should contact a qualified family lawyer to review your circumstances, what can be done about changing venue (if anything), and follow that lawyer’s advice.