When a potential client calls my office with a child custody question, the first thing I need to know is where the child lives and how long the child has lived there. Why does this matter? It matters because there is a law called the UCCJEA and it governs what court can hear a particular custody case.
UCCJEA stands for the Uniform Child Custody Jurisdiction and Enforcement Act. It is the law in every state in the United States (except Massachusetts, where it is still pending in the legislature at the time of this post). Before the UCCJEA was adopted, any state where a child was physically present could make a custody determination. This resulted in parents abducting children and traveling to other states in order to "forum shop" to get a favorable custody determination.
The UCCJEA says that a child's "home state" has priority to decide custody of that child. A home state is defined as "state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding." Temporary absences from the state don't count. And if the child is an infant less than six months old, then the period from birth to present is what counts.
What if the child hasn't lived in one place for six months? In that case, jurisdiction will be proper where the child and at least one parent have a "significant connection" with the state and there is substantial evidence concerning the custody determination available there.
If the child does not fall into either category, then any state with an appropriate connection to the child can make a custody determination.
Now, there are a couple of exceptions. First, if a state court has already made a custody determination regarding a child, then that court will continue to have continuing exclusive jurisdiction over the child so long as one parent continues to live in that state. Second, if there is an emergency that threatens the welfare of the child, then a state can have temporary jurisdiction to take measures to protect the child, but the child's home state will have priority once the emergency has ended.
Let's take up a couple of examples.
Let's say that you and your husband live in Arkansas with your children. You move to Atlanta for a job opportunity and you live there for one year. You and your spouse decide to divorce. Even though you may be able to file for divorce in Georgia, Georgia will not have jurisdiction over the custody determination because Arkansas is the "home state" of the children.
Now let's say that you and wife divorce in Arkansas and she gets primary custody of the kids. She moves with the kids to Chicago. Seven months later, something happens and you want to file for a change of custody. Even though Illinois is the "home state" of the children, the Arkansas court will have continuing exclusive jurisdiction because it made the initial custody determination, and you continue to live here.
As you can see, this gets complicated. But knowing where to file is the first and very important step in filing for custody. If you have a custody case, scheduele a consultation with Leslie and see how she can help.