In Virginia, child custody and visitation orders are modifiable where (a) there has been a material change of circumstances and (b) the best interest of the child warrants a different custody arrangement. Upon filing a motion to modify a custody order in Virginia, however, it must first be determined which state or court has jurisdiction to entertain a modification request under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
Under the UCCJEA, a state has initial jurisdiction to enter a custody order under one of four grounds:
- it is the child’s “home state” (state where the child lived with a parent for at least six consecutive months immediately before the commencement of the custody proceeding),
- the child has a “significant connection” to that state and there is “substantial evidence” relevant to child custody in that state,
- it is an emergency situation, such as where the child is present in the state and has been abandoned or faces abuse or neglect, or
- no other state would have jurisdiction to decide custody.
What Is Exclusive, Continuing Jurisdiction?
The UCCJEA provides that once a state with initial jurisdiction has entered a custody order, that state will have exclusive, continuing jurisdiction to modify its order except in certain circumstances. No other state may modify a custody order so long as the state that issued the order has exclusive, continuing jurisdiction. This often becomes an issue when the child moves and establishes a new home state, and the non-custodial parent remains in the state that has exclusive, continuing jurisdiction. In such a scenario, a court in the child’s new home state cannot modify the original custody order unless and until (a) the original state no longer has exclusive, continuing jurisdiction or (b) the original state declines to exercise its jurisdiction on the ground that it is an “inconvenient forum” and the new state is better equipped to decide custody modification issues.
(Note that only the state that has exclusive, continuing jurisdiction can make the determination that it is an “inconvenient forum”).
However, the original court must decline to exercise its exclusive, continuing jurisdiction, and refuse to hear the request for a modification, if the jurisdiction was created or maintained by the “unjustifiable conduct” of the party bringing the modification action. While the UCCJEA does not specifically define “unjustifiable conduct,” examples may include the wrongful removal, detention or concealment of a child, or cases involving domestic violence.
When Does a State Lose Exclusive, Continuing Jurisdiction?
Under the UCCJEA, the state that issued the initial custody order will lose its exclusive, continuing jurisdiction to modify that order only when one of the following occurs: (1) the state loses “significant connection” jurisdiction or (2) the child, the child’s parents, and any person acting as the child’s parent no longer live in the state that issued the order.
Now, only the state that issued the custody order may make a determination that it no longer has “significant connection” jurisdiction. The inquiry into significant connection jurisdiction only arises when the child has no “home state” (home for the past 6 months). If the child is less than six months old, the home state is defined as the state in which the child lived from birth. If there is no home state, then the original state may address significant connection jurisdiction, but only when faced with appropriate facts and circumstances.
On the contrary, any state may determine that the child, the child’s parents, and any person acting as the child’s parent no longer live in the issuing state. While this may seem to be a fairly simple determination, where an individual lives is often the subject of huge debate, especially in cases, for example, involving active duty service members.
If you are involved in a custody modification case involving a custody order from another state, and you or the other parent have relocated, it is imperative that you consult with an experienced attorney as soon as possible. Failure to address modification jurisdiction under the UCCJEA could result in your case being heard in the wrong state, an invalid custody order being entered, or significant delays in the resolution of your case.
From offices in Fairfax, Arlington, Ashburn, Manassas and Fredericksburg, the child custody lawyers at Livesay & Myers handle custody and visitation cases in courts across Northern Virginia. Contact us to schedule a consultation today.
See also: Home State Jurisdiction Under the UCCJEA