Home State Jurisdiction Under the UCCJEA
Parties in custody or visitation disputes often find themselves in two separate counties or even states. This frequently leaves the parties to wonder which court has the authority to resolve the outstanding issues. If parties to a custody dispute, in which no previous order has been issued, file petitions in two different states, the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) will dictate which state has the authority to make the custody determination. The UCCJEA is an act that has been adopted by 49 out of the 50 states, including Virginia, as an attempt to provide consistency between the states and prevent parents from moving to a certain state for a preferential outcome.
Generally, under the UCCJEA, a state will have jurisdiction to make an initial custody determination if it was the home state of the child when the petition was filed or was the home state of the child six months before the filing and at least one parent still resides in the state. What exactly is the “home state” of a child? The UCCJEA defines the term as the state in which the child lived with a parent for at least six consecutive months immediately before the commencement of the custody proceeding. If the child is less than six months old, the home state will be the state in which the child was born and lived from birth. If, at the time the petition was filed, a child has been out of a state for longer than six months, that state will no longer have jurisdiction to determine custody or visitation.
For example, take the hypothetical family of John and Suzy Doe, and their one-year-old son Joe Doe, who was born and raised in Virginia. John and Suzy separate and John moves from Virginia to Texas with Joe. John would not be able to file for custody in Texas until Joe has resided there for at least six months. If Suzy files for custody in Virginia before six months have elapsed, Texas will not be able to hear the matter. In other words, for the first six months after John moves with Joe to Texas, Virginia will remain Joe’s home state under the UCCJEA.
In most cases, the UCCJEA allows only the child’s home state to rule on custody and visitation issues. However, there are a few exceptions. The UCCJEA allows states other than the home state to exercise jurisdiction in these limited circumstances:
- Inconvenient forum. In cases where the home state is is an “inconvenient forum” and some other state is better equipped to decide custody, the UCCJEA allows that other state to exercise jurisdiction. In order to determine whether the home state would be an inconvenient forum, the home state court is to analyze specific factors. These factors include location of the evidence and witnesses, any acts of domestic violence, financial situation of the parties, and familiarity of the court with the pending matter. If, after looking at the factors, the home state court determines that another state would be more convenient, then it must decline jurisdiction and allow that other state to take on the case.
- Emergency jurisdiction. In situations where a child (or the child’s sibling or parent) has been abandoned, abused or threatened with harm, a court may exercise temporary emergency jurisdiction even if it is not the child’s home state. However, any order issued by a court exercising jurisdiction under this exception will be temporary in nature as its purpose is to provide immediate protection of the petitioner.
- Unjustifiable conduct. This exception applies to cases where one party has engaged in unjustifiable conduct in order to improperly obtain home state jurisdiction in a certain state. Two examples of such unjustifiable conduct would be: (a) taking a child from a state without notice to the other parent and (b) withholding information about where the child is. If the home state court finds such unjustifiable conduct to have taken place, the UCCJEA requires that court to decline jurisdiction—and allows the court to also penalize the wrongdoer by ordering them to pay reasonable expenses associated with the action.
If you are in a custody dispute and know or suspect that the other parent plans to leave the state with your child, be sure to consult with an experienced custody attorney as early in the process as possible. Due to the strict time constraints related to the UCCJEA, failure to act promptly may result in the case being heard in another state. That might require you to incur significant expenses traveling to multiple out-of-state court hearings—not to mention the fact that the other state might have custody laws that are not to your benefit.
From offices in Fairfax, Arlington, Leesburg, Manassas and Fredericksburg, the child custody lawyers at Livesay & Myers handle UCCJEA custody cases in courts across Northern Virginia. Contact us to schedule a consultation today.