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Our society is increasingly a mobile one. While it usually is better for a child to have their parents living near one another, it often is impractical. One parent may need to move for employment opportunities, to be closer to family or another support system, or simply to make a fresh start in a new place. Child support, custody, and visitation can be difficult enough to navigate when parents live in the same state. When one parent moves to a new state or a different country, however, especially with the children, these issues take on a new complexity.
If the parents live in two different states, or if one parent moves with a child to a different state, which state has the jurisdiction (authority) to decide a custody or child support case? Is it the state where the child lived with both parents, is it the state where the child lives now, or is it the state where one of the parents still lives? These multi-state jurisdiction questions can arise both when no prior court order exists and when a case has already been decided by a formal written parenting agreement or by a court order.
Frequently, a geographic move makes a prior custody determination no longer practical. Other times, one parent’s new job out of state means that original child support amounts are no longer correct. Sometimes the parent who owes child support stops paying, or the custodial parent stops making the child available for visitation. The result is that one parent needs to ask the court to modify, or enforce, the original custody or child support order. Again, the same issue arises—which court in which state decides the matter?
To help answer that question, two uniform state laws were developed: the Uniform Child Custody and Jurisdiction Enforcement Act (“UCCJEA”) and the Uniform Interstate Family Support Act (“UIFSA”). These uniform laws have been adopted by all fifty states and the District of Columbia. They provide a basis for deciding which court has the power to decide a child custody or child support dispute, as well as governing how one state should enforce an order issued by another state. UCCJEA and UIFSA are designed to prevent “forum-shopping”—a practice in which one parent moves to a state whose laws they believe favor them, and files a support or custody case in the courts of that state in an effort to obtain a better result.
The UCCJEA requires that initial child custody determinations must be filed in the “home state” of a child. A child’s home state is the state in which they have lived for at least six consecutive months prior to the date of filing of the initial child custody action. If the child has not lived in their current state for at least six months, a court must ascertain whether, during the preceding six months, the child had a different “home state.” A child can have only one home state at a time; if a child’s new state of residence does not yet qualify as a home state, the previous home state remains their home state until the new state qualifies. Unfortunately, the issue can get quite complex, and the analysis does not end here.
When a parent files a pleading in a custody proceeding, they must file a UCCJEA affidavit that affirms where, and with whom, the child lived during the previous five years. With only rare exceptions, a court does not even have the right to make an initial custody determination if it is not the child’s home state. It can be important, therefore, to avoid filing an action involving child custody in a court that does not have authority to hear it. Doing so will gain no tactical advantage and will almost certainly motivate the other parent to file an action in the child’s home state.
Once a court has established jurisdiction and issued an order regarding child custody, that court retains what is called “exclusive modification jurisdiction” if the order later needs to be modified or amended in any way. With limited exceptions, the original state will be the only one with jurisdiction to modify the order. The exceptions include if neither the child, nor either parent (or any person acting as a parent) lives in that state or the child no longer has a significant connection with that state. When all relevant parties, including the child, leave the state that originally issued the child custody order, another state can assume jurisdiction without the need for permission from the first state.
A parent who moves to a new state with a child custody order from another state may register the order in the new state. This can help with any future need for enforcement, and even with a future modification. The other parent can object to the registration, but only on very limited grounds. Either parent may file a petition in the new state to enforce the out-of-state child custody order. However, typically only the state with continuing exclusive jurisdiction may modify the order.
Where a child custody case is filed, heard, and decided can be critically important. The state where the case is heard determines what evidence can be presented, whether and what witnesses may be subpoenaed, and what substantive laws will apply. If you or your co-parent might file a custody action, whether initial or modification or enforcement, in more than one state because of the facts in your case, consult with an experienced family law attorney to ensure that you know and protect your rights.
As with the UCCJEA, the Uniform Interstate Family Support Act (UIFSA) was designed to address situations in which two or more states might need to address a family law issue—in this case, child support. UIFSA prevents two states from issuing competing child support orders and allows an order that has been issued in one state to be enforced by another state.
To avoid confusion, UIFSA requires that there is only one order controlling child support at a given time. Just as with custody, an order from a state that has established continuing exclusive jurisdiction over child support will be the controlling child support order. That state is the only one that may modify the child support order as long as the child or either parent remains in the state. However, as with a child custody order, the child support order may be registered and enforced in another state.
UIFSA requires what is called “personal jurisdiction” over the payor in order to establish, modify, or enforce a child support order. Personal jurisdiction is the right of a court to make decisions regarding a particular person. A person must have a strong enough legal connection with a state before that state’s courts can exercise power over the person. For child support, that connection can arise in a number of different ways, including: the person has their permanent home in the state; is served with official court papers while in the state; agrees to the court’s power; participates voluntarily in the case; or has some other strong connection to the child support issue and the state.
While UIFSA, like UCCJEA, was designed to offer clarity regarding courts’ jurisdiction in interstate family law disputes, the law itself is complex. When facing these sorts of issues, it is essential to have the guidance of a family law attorney experienced in custody and support across multiple states or even multiple countries.
An attorney who understands the detailed provisions of UCCJEA and UIFSA and the facts of the case at hand is often able to gain a tactical advantage for his or her client. The attorneys of Strickler, Platnick & Hatfield have extensive experience advising and advocating for parents facing child custody and support proceedings involving multiple states.
We combine our knowledge of jurisdictional and substantive law with meticulous planning to ensure that our clients’ rights and interests are protected. In our decades of family law practice, we have successfully represented countless clients in matters involving UCCJEA and UIFSA issues.
We invite you to contact Strickler, Platnick & Hatfield to schedule a consultation in which we can address your concerns about international relocation or parental abduction.
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