Your ex has moved out. But that was only the beginning. Now you must figure out who will get custody of your children. If you and your ex can't agree on a custody arrangement, you may have to figure it out in court. But which court handles your custody case? And what happens to your case if your ex didn't just move out, but moved to another state?
Here's a quick introduction to the jurisdiction of custody and visitation cases.
Jurisdiction of Child Custody Cases
Jurisdiction is an essential aspect of child custody and visitation cases. Jurisdiction refers to the court's authority to decide on the child's care and custody. In determining jurisdiction, courts consider several factors. They might look at the child's connection to a particular state, their personal relationships, and where their parents live or have a physical presence. The court may also consider if the forum is inconvenient for a party and if it is an unjust filing or emergency filing.
In addition to these factors, the court will also consider the subject matter of the case. They might look at the spousal relationship between the parents and the best interests of the child. Ultimately, the court must have jurisdiction to make orders regarding custody and visitation.
Jurisdiction of Custody and Visitation: Parties Residing in the Same State
State custody laws will govern the custody and visitation determinations when all parties reside in the same state. When a divorce is pending, a court hearing is the appropriate venue for making custody or visitation decisions during the divorce proceedings. Some states require the filing of visitation petitions.
Family courts normally handle divorce, child support, and child custody cases. Generally, these are organized into state family courts, a division of the local court (district, circuit, superior, etc.). Family court proceedings usually follow the same procedures as civil courts. Each side can present substantial evidence. However, family court cases are almost always decided by a judge rather than a jury.
While the custody forms you file with the court can be similar nationwide, each state has specific forms. Generally, however, all states make child custody determinations similarly. In child custody proceedings, most courts across the nation prioritize the best interests of the child. Courts use this standard to determine the custody of the child and to reach a final court order.
Parties Residing in Different States
The Uniform Child Custody Jurisdiction and Act (UCCJA) governed jurisdiction issues in custody and visitation cases. The UCCJA established that a child's home state is where the child has lived for at least six consecutive months preceding the custody case.
In some cases, jurisdiction may be challenged. For example, if one parent has been a victim of domestic violence, they may argue for a more appropriate forum for the child's safety. Similarly, if a person acting as the child's primary caregiver, like a grandparent, has moved to a different state, that state may be a more convenient forum for the custody case.
The UCCJA also established temporary emergency jurisdiction. This may be granted if the child is in danger due to unjustifiable conduct or has been abandoned. In these cases, the court may grant temporary orders for physical custody, legal custody, or visitation.
The UCCJA was replaced by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in 1997. Each state has adopted it except Massachusetts. The Uniform Child Custody Jurisdiction and Enforcement Act helps determine which state has personal jurisdiction. The UCCJEA also decides who would have continuing jurisdiction if the parents want to modify the custody arrangement or parenting time. The UCCJEA is highly technical and must be strictly followed.
Courts have the power to hear custody cases if they are in a child's “home state." The home state of the child, or the home state jurisdiction, is where the child lived for six consecutive months since the initiation of the legal action. However, temporary absence is usually okay. At least one parent must continue to reside in the state. If you don't bring the action in the child's home state, you might risk dismissal of your case due to an inconvenient forum.
Confused About Establishing the Jurisdiction of Your Custody and Visitation Case? Get an Attorney's Help
Figuring out child custody issues isn't easy. This is especially true if you and your ex live in different states. In these cases, you must determine the jurisdiction of custody. A family law attorney can help tremendously. They can help you obtain a final custody order.
You can find an attorney who is familiar with UCCJEA and will apply the law to your child custody matters. They can help advise you during the custody dispute by providing valuable legal advice on your parental rights. Attorneys will be knowledgeable about the family code of your state. They will even help represent you in state court to get custody of a child.
To get help, speak with a child custody attorney today.