Filing for child custody when the parents live in different states depends on whether both parents agree on which state to file for custody.

Suppose parents haven’t reached an agreement about where to file, and they live in different states, the law dictates that the “home state of the child” principle will apply. This principle means a court is permitted to decide custody arrangements of the child.

Under the same principle, the court will determine if the child has lived in the state for at least six months or lived in the state until a parent recently moved them.

The “home state” principle applies in most states and most situations. However, a few exceptions are depending on the circumstances.

Child custody between states: where do I file for child custody?

Parents can agree to have joint custody when they live in different states and create a parenting plan to reflect this agreement.

Suppose parents agree on which state to file their parenting plan. In that case, that particular state’s guidelines will be observed when making a parenting plan and custody schedule.

What if parents disagree?

If parents disagree on a parenting plan and state jurisdiction over custody arrangements, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) will apply.

The UCCJEA stipulates that a state court can decide the custody arrangements only when at least one of the following is true:

  • The state which is the “home state” of the child, or was the child’s home state within six months immediately before the commencement of child custody proceedings if the child is absent from the state, but a parent or person acting as a parent continues to live in the state;
  • The child has significant connections with people in the state, like relatives, friends, and teachers.
  • The child is in the state because there is fear of abuse, neglect, or abandonment if in a different state.
  • No state can meet any of the criteria above.

If more than one state meets the above requirements, the state that makes (or has already made) the first decision on custody will have authority. This court authority also means that other states will enforce the judgment.

What is the “home state” principle?

A “home state” refers to the “state where a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding.

In the case of a child less than six months old, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is considered part of the period.”

Jurisdiction and continuing jurisdiction

Only one state will have jurisdiction over the custody arrangements where parents live in different states.

For example, let’s say a child has lived in New York with his mother and father for the last six years. Suppose the mother moves to California, but the child remains in New York. In that case, California will not have jurisdiction to determine custody over the child. New York is the only state that can determine custody at this point.

Also, under the “home state” principle, a court with authority may decline its jurisdiction and transfer it to another state:

  • if it’s more convenient for the parties involved; or
  • if one of the parties engaged in misconduct necessitating a change.

Once a custody decision has been made by a state court, the state maintains jurisdiction over all matters involving that child, unless:

  1. A court of the state with jurisdiction determines that the child or the child and a parent do not have a significant connection with the state, AND evidence concerning the child’s custody determination is not available in the state; OR
  2. A court of the state with jurisdiction, or any other state, determines that the child and both parents or acting parents do not reside in the state any longer.

When parents live in different states, the child custody laws aim to prevent a child’s transfer to another state to grant that state authority over their custody case based on a favorable child custody award. If a parent does this, he or she will be denied custody.

Let’s elaborate on the New York example previously given: when the parents divorced in New York and one of the parties, the mother, together with the children, moved to California. On the other hand, the father continues to live in New York with the children maintaining a significant connection to New York. This connection involves regular visits to New York and spending their summers there.

Three years later, the father files a suit in a New York court to modify custody. The mother attempts to transfer jurisdiction to California. In this case, the UCCJEA will prevent her attempt to change jurisdiction. The UCCJEA acts to stop “jurisdictional forum shopping” to protect the New York court with original jurisdiction. However, there’s one exemption to this rule: if the child’s parents or any person acting as a parent do not live in the original state anymore.

To clarify the above statement, imagine the mother and her children moved to California after the parents divorced in New York. At the same time, the father also moved to Las Vegas. Because the children and both parents no longer live in New York, its courts lose their exclusive, continuing jurisdiction to modify their custody orders. For practical purposes, that means jurisdiction to change those orders will most likely not be in New York. Instead, the change will occur in the state where the children and at least one parent have taken up residence. In this case, it’s the state of California.

Modification of custody determination

Modifying the process of determining who gets custody of the child can only be done at the court where it started. A court of another state does not have the authority to alter this initial process. However, a transfer of court authority can occur when the state with the initial power relinquishes its jurisdiction to another state. The change in jurisdiction becomes possible only after the court determines that neither party lives resides in the state with jurisdiction.

Let’s suppose a child’s father gets custody in the New York courts while the mother moves to Arizona. Suppose the child spends the summer in Arizona with his/her mother. In that case, the mother cannot go to Arizona’s courts and try to change custody – New York still has continuing jurisdiction.

Emergency Orders

A temporary emergency order can be sought in a state which otherwise doesn’t have jurisdiction if the child is in danger or needs immediate protection.

All states except Massachusetts (and Puerto Rico) follow the UCCJEA. Under the UCCJEA, you can file for temporary emergency custody in a state other than the home state if:

  1. the child is present in the state, and
  2. the child has been abandoned, or
  3. it is necessary to protect the child because the child or a sibling or parent is subjected to or threatened with abuse.

Massachusetts adopted a slightly different rule, the Uniform Child Custody Jurisdiction Act (UCCJA). Under the UCCJA, an individual can only apply for temporary emergency jurisdiction when the child has been abandoned or needs emergency protection. Here, the child (not the parent or sibling) is exposed to or threatened with mistreatment or violence.

After issuing an emergency order, the state court will determine if there is an existing custody order from another state in effect. If there is a current order, a reasonable period will be made to allow the parties to return to the court having jurisdiction to dispute the issues in that court.

If no previous child custody order exists, the emergency court order will remain until the court with “home state” jurisdiction arrives at a decision. Suppose no decision is made, and the state in which the emergency order was made becomes the child’s home state. In that case, the emergency order becomes a final custody determination.

Creating interstate child custody agreements, parenting plans, and visitation schedules

After determining which state has jurisdiction over your custody arrangements, you and the other parent can prepare your parenting plan and visitation schedule.

A parenting plan or child custody agreement outlines how you and the other parent will continue to care and provide for your children after you separate.

An effective strategy is personalized to fit the needs of your family situation and contains the following information:

  • Who has legal custody
  • Parenting schedule
  • Medical & Health Care
  • Education & Extracurricular
  • Pick Up/Drop Off Points
  • Parenting Guidelines
  • Child & Parent Relationship
  • Child Care
  • Parent Communication Each Other
  • Travelling & Relocation
  • Child Support & Financial Information
  • Special Needs of the Child

Relocating after a plan is in place

When a family has a parenting plan in place, but one parent moves to a long-distance or new state, the parents must make a long-distance plan.

If you are the custodial parent and you are relocating, you need to check the terms of your current plan to see where you’re allowed to move the child. If the non-custodial parent does not want you to proceed, you may have to apply to the court to decide on the issue.

Summary

  • Filing for child custody is relatively straightforward and is based on where the child has been living for the six months before custody proceedings.
  • If you and your child recently moved to a new state, you may not be able to file for custody in that new state until you have lived there for at least six months.
  • If there is a prior court order for custody, you may have to file in that same court for future custody issues.
  • If there is more than one state involved – for example, if the child has moved across state lines or if the other parent is in a different state – it can be more complicated.

As in all custody in different states cases, you must find a lawyer to advise you about your particular situation and determine which court to go.

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