It's not uncommon for divorced or unmarried parents to live in different states. Living in different states can make co-parenting more challenging, especially in a joint custody situation. It is also important to understand that a child custody order in one state is valid and enforceable in nearly every other state so custodial parents can't simply move across state lines without following certain procedures.
Many courts now incorporate innovative forms of contact, like using video calling for "virtual visitation," when deciding interstate custody arrangements. Read on to learn more about how the law can apply to interstate custody situations.
The Full Faith and Credit Clause and Interstate Custody Arrangements
The Constitution of the United States sets up the "Full Faith and Credit Clause" that requires judges to enforce valid judgments and decrees that are issued by courts in different states.
Even with this clause, in the past, judges would routinely disregard interstate child custody arrangements and orders that were validly issued from courts in different states. Instead, courts would issue new orders and judgments based on the evidence that was before them at the time.
As you can imagine, the existence of multiple and conflicting custody awards toward a single child could create great confusion and hardship. If one parent went to take a child based on a custody award from state X, she could be arrested for kidnapping in state Y. However, thanks to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), many of these problems have been resolved.
Uniform Child Custody Jurisdiction and Enforcement Act: Basics
Almost every state and the District of Columbia have enacted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJA), which sets out standards for courts to make custody determinations and standards for when a court must defer to an existing determination that originated in another state. Of the 50 states, only Massachusetts currently does not follow the UCCJA.
In general, under the UCCJA, a state court can make a decision about a child custody arrangement if (these are in order of preference):
- The state making the decision is the child's home state. For a state to be a child's home state, the child must have resided with a parent in the state for at least six months prior to the legal action being brought, or where the child is presently absent, at least one of the child's parents continues to reside in the state.
- The child and at least one parent have significant connections to the state. Other than mere physical presence within the state, these connections can include connections with teachers, doctors, and grandparents, to name a few. In addition, there must also be substantial evidence inside the state that concerns the child's care, protection, training, and personal relationships.
- More appropriate forum. The home state or state with significant connections may decline jurisdiction where a more appropriate forum exists.
- No other state. When no state can meet any one of the above three tests, a court may exercise vacuum jurisdiction over the custody orders.
Per the terms of the UCCJA, if a state court cannot meet any of the above requirements, the court cannot issue a child custody judgment even if the child is currently present in the state. In addition, if a parent has wrongfully removed and/or retained a child in a state in order to make that state the child's home state, the parent will be denied custody.
If more than one state can meet any of the above tests at the same time, the UCCJA dictates that only one state can issue a child custody judgment. In practical terms, this means that if a state court in one state makes a decision before another court in a different state, the judgment of the first court will be binding.
The UCCJA also requires that the courts communicate with each other to resolve emergencies and to determine in which state's court will handle custody going forward so that there are no conflicting decisions from multiple courts.
Jurisdiction for Temporary or Emergency Orders
For the purpose of making emergency custody orders, a court may have jurisdiction when the child is in the state for safety reasons. Generally, this means that the child is in the state after being removed from another state for fear of abuse, neglect, or abandonment if sent back to the other state.
It is important to understand that orders based on emergency jurisdiction are temporary. The orders may only last until a court with exclusive jurisdiction can act or confers jurisdiction to another state.
The UCCJA, State Laws, and Parental Abduction
The UCCJA benefits the laws in all states that follow it by creating consistency in interstate custody arrangements. In addition, it also helps with problems associated with one parent kidnapping a child and then seeking a custody award without informing the court of the situation.
Example of Interstate Custody Problem
To help illustrate this point, consider the following example:
Wilma and Harold were married and resided in Oregon. Wilma gave birth to their first and only child Ben. The family lived together in Oregon for 8 years until Harold left Wilma, moving to Texas and taking Ben with him, and planning a divorce. Immediately on getting an apartment in Texas, Harold went to Texas court to ask for a custody award for Ben.
In this example, the Texas court would not able to issue an award of custody, as Oregon would likely be considered Ben's home state and Ben has no significant connections with the state of Texas. Wilma could go to an Oregon court to request custody. However, keep in mind that if Harold had removed Ben from Oregon because Wilma had been abusing Ben, then the Texas court may have been able to assert temporary emergency jurisdiction over the case until it could determine which state should hear the matter.
Get Legal Help with Your Interstate Custody Arrangement
Any child custody dispute can be technically challenging and emotionally difficult. Custody disputes can be even harder to resolve when the parents live in different states. With the UCCJA, states work together to help crack down on child abduction and other concerns. If you and the child's other parent are unable to reach an agreement, you may need legal help. If you have any questions about interstate custody arrangements or would like help working through any custody issues, contact a child custody attorney near you today.