While many children are born to parents who either reside together or near each other, children are also frequently born to parents who reside in separate states. In some situations, the parents of a child may initially reside in the same state, but due to a change in personal or professional circumstances, now live in separate states. If the parents lived in the same state at the time a custody action was filed, the court where the action was originally filed will retain jurisdiction over the case. When the parents of a child live in separate states, attempting to determine custody of the child may seem overwhelming. Fortunately, there are statutes that outline how and where custody may be determined.
Uniform Child Custody Jurisdiction and Enforcement Act
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which was drafted in 1997, has been accepted by 49 states and sets forth parameters regarding interstate custody. The UCCJEA has not been accepted by Massachusetts. Under the UCCJEA, the most important factor in determining which state has jurisdiction over the matter is where the child lives.
Determining a Child’s Home State
The only place where a child custody case can be heard is the child’s “home state” – usually, the state where they have lived for at least six months leading up to the beginning of the case.
Jurisdiction will lie in the child’s home state, or in a state where the child has resided for the six months prior to the filing of the action. Any parent seeking custody must also reside in the state in which the custody action is filed for six months prior to filing the action. If the child has not resided in any one state for the six months prior to the filing of a custody action, the court will analyze whether the child and one of the parents have a strong connection to one state to determine where jurisdiction lies. A finding of a significant connection requires more than just a determination that the parent or child is currently present in that state. If the child does not have a significant connection to any particular state, then any state in which the child has a connection can be found to have jurisdiction.
Custody Cases in a State Other Than the Child’s Home State
In some cases, the child’s home state will decline to exercise jurisdiction over a custody case. This only happens in limited circumstances, however. For example, if the parent seeking to allow a court in a state other than the child’s home state to have jurisdiction over the child’s custody can show the home state is an “inconvenient forum”, the home state will decline to exercise jurisdiction. The court in the home state must weigh several factors in determining whether or not it should be considered an inconvenient forum, such as the location of parties involved and the financial situation of the parents.
A court in a state that is not a child’s home state may also chose to exercise jurisdiction over a child custody matter in cases of emergency, such as when the child’s well-being is in danger, or a parent is no longer able to take care of a child. In cases of emergency, any custody order issued by a state other than the child’s home state will be temporary. Lastly, if one parent is attempting to unjustly file a custody action in a state court, that court must decline to exercise jurisdiction. For example, if one parent removed a child from one state without notice to the other parent and refuses to provide information regarding the child’s whereabouts in an attempt to define the child’s home state, the court in that state cannot exercise jurisdiction over the matter.
Exceptions to the Home State Rule
If a court has jurisdiction over a custody case, it will retain jurisdiction unless neither the child nor its parents live in the state, or it is determined that either the child does not have a significant connection with the state, or neither the child nor the parent have a connection to the state, and evidence necessary to determine appropriate custody arrangements is located in another state.
Moving a Child to Another State
If either parent seeks to move a child out of state and there is an existing custody order, the parent must seek leave of court. Generally, a court will not allow a parent to relocate a child in a manner that will affect the other parent’s right to custody, unless it is determined to be in the best interest of the child. In some cases, such as where one parent wants to move out of state due to better educational or medical resources for a child, the court might grant the right to relocation. If a parent wants to move solely due to personal or professional reasons, however, the court may find it is not in the best interest of the child and deny the relocation.