But what happens when the child has not lived in the United States in the past six months?
Take the hypothetical case of John & Suzy Doe for example. John and Suzy have an 8-year-old son named Joe. Joe was born in England, but moved to Virginia with his parents when he was two years old. After six years in Virginia, Suzy takes Joe and heads back to England. Nine months later, Suzy files for custody in England and John files for divorce in Virginia, also asking for custody. Which court should hear the custody matter regarding Joe, the court in England or the Virginia court?
Under the UCCJEA the home state of a child will generally have jurisdiction to make an initial custody determination, unless one of several limited exceptions applies. These exceptions include: inconvenient forum; emergency jurisdiction; and unjustifiable conduct by one of the parents. For a full examination of this topic, see The UCCJEA in Virginia Custody Cases.
But what about Joe? Can another country be a home “state” for purposes of the UCCJEA? The short answer is yes, it can. Under the UCCJEA, Virginia courts must treat a foreign country as if it were a state for purposes of determining a child’s home state.
Since Joe has lived outside of Virginia for more than six months, Joe’s home state would be England right?
Under our hypothetical, Joe has lived outside Virginia for nine months and Virginia has lost “home state” jurisdiction. If John filed three months after Joe and Suzy left, Virginia would still be Joe’s home state; unfortunately he waited nine months before filing. So, looking back six months from the time John files for divorce and custody, Joe has been in England the entire time. The Virginia court will likely determine Joe “lived in” England for the past six months.
But what exactly does “lived in” mean in this context? It might seem straightforward, but may not always be obvious. The court will look at the child’s actual physical presence in a particular state or country for the past six months; however, this does not include a temporary absence from the child’s home state.
For example, if Suzy had taken Joe to England with her while she was on a temporary work assignment for nine months, Virginia would have remained Joe’s home state for custody purposes. His absence from Virginia and presence in England would have been only a temporary situation. The court would likely find that Joe had not been living in England. Under this scenario, John could still ask the Virginia courts to make a decision about custody. The same principles apply if Suzy had taken Joe to visit her family for the summer in Ireland for, let’s say, three months. That period in Ireland will not be included in the court’s six months calculation since it was only a temporary absence.
Interstate custody jurisdiction is time-sensitive and potentially very complex. If you are involved in a custody case where either parent has moved a child to or from Virginia, consult with an experienced family law attorney as soon as possible. A good attorney can help you determine which state has jurisdiction, and potentially avoid fighting a custody battle in another state or foreign country.
See also: Guide to Custody in Virginia