John and Mary got a divorce and filed a custody arrangement. Now, Mary wants to move to a new state and take her child with her. She files a petition for custody modification in her new state. Unfortunately, the court denies her request because the state does not have jurisdiction.
Child custody isn’t just about filing paperwork, explaining your case to the judge, and receiving a judgement. You must also have jurisdiction. What does that mean?
Here are five important details you should know when dealing with child custody jurisdiction.
1. Jurisdiction—A Definition
Jurisdiction grants a court the right to exercise their authority and apply the law. In other words, it’s the right of the court to hear and decide your case.
2. The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA)
For the court to hear and consider child custody or visitation rights, a state must first have jurisdiction over the child. So, what state has jurisdiction?
To provide blanket enforcement rules across the nation, the National Conference of Commissioners on Uniform State Laws drafted the UCCJEA. It clarifies that the child’s home state, or the state in which the child has lived for six continuous months, holds jurisdiction over the child. The act also includes uniform procedures for the registration and enforcement of custody orders across state lines.
The UCCJEA was drafted in part to keep parents from shopping for a more favorable court.
Massachusetts is the only state (including the territories of D.C., Guam, Puerto Rico, and the Virgin Islands) that has not adopted the UCCJEA.
3. Continuing Jurisdiction
Once custody has been heard and decided in court, that state maintains continuing and exclusive jurisdiction over the child up and until significant connection to the state changes or dissolves, or neither parent lives in that state any longer.
4. UCCJEA Exceptions
Exceptions to the UCCJEA include:
- When a child hasn’t lived in a state for six consecutive months. Jurisdiction then falls to the state where the child has lived the longest and to which the child has significant connections (i.e. family and friends).
- A court outside of the child’s home state files a temporary emergency order due to child abuse or domestic violence.
- Adoption, juvenile delinquency, emancipation, or emergency medical care.
- When a parent or guardian has sole legal and physical custody.
- If foreign custody orders have not been adopted and recognized by the U.S.
5. Kidnapping and Child Abduction
Moving to another state without having sole legal and physical custody, or having a custody arrangement to do so, could be deemed by state law as kidnapping. However, if the parent files for an emergency order in another state, the laws behind the definition of kidnapping become grayer.
In the same vein, moving to another country without an official custody order could constitute international child abduction.
To avoid these issues, consult an attorney who understands the UCCJEA before removing a child from their home state.