Today’s divorced families often move to different states. With different state laws providing different protections for parents, this creates numerous complexities in setting up a Permanent Parenting Plan. (link to National Parent’s Organization on Report Cards for shared parenting laws of different states). For example, before a parent can move to a different state, you have to give a legally sufficient notice of intent to move and comply with the Parental Relocation Statute. (cite to other blog article). Once you move and “establish residency” in another state, you likely will need to file a Motion to Register Foreign Judgment (blog article cite to come).
Three statutes merit your attention. They are:
- The Parental Kidnapping Partnership Act, (PKPA) which prevents parents from simply moving with their children to another state without court involvement; (cite to blog)
- The Uniform Interstate Family Support Act (UIFSA), which governs child support; (cite to blog)
- The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) which governs which state is going to hear any changes to the parenting schedule.
This article is about the UCCJEA. “Jurisdiction” refers to the power of a particular court to act. To have “jurisdiction,” a Court must have power to resolve disagreements between particular people – this is called “personal jurisdiction.” The Court must also have the power to resolve disagreements about a particular subject. This is called subject matter jurisdiction. The UCCJEA is a statute that has been adopted by all US States. It tells families which court has personal and subject matter jurisdiction to enforce child custody orders when the parents move to different states.
To figure out which state “jurisdiction,” and assuming there is no emergency (cite goes here), Courts are required to engage in a three step process.
- The Court must ascertain whether another state has “original exclusive” jurisdiction. This means that another state set the original custody order and still has the exclusive power to modify it for some reason. A reason might be that there is ongoing litigation related to modifying the Parenting Plan, or the child still lives in that state with one of the parents.
- If another state has lost its “exclusive” jurisdiction, the Court should ascertain whether THIS state is the child’s “home state.” This means that the child must have lived primarily in this state for at least six months.
- Even if the child has lived in this state for at least six months, the Court may decide that the other state is the more “convenient forum” for continued litigation. This will generally be because there is more evidence in the other state.
Who cares, right? A Court is a Court, right? Wrong. The Court that determines the custody rights of parents can have a dramatic impact on the result. State family laws are applied very differently. Consider the following cases this Firm has faced over the years (details changed to preserve client confidentiality):
A parent refuses to return the children to the other parent in Tennessee at the end of summer co-parenting time, and filed for custody in Arizona. We can get an Order requiring the other parent to bring that child back to Tennessee and dismissing the Arizona petition. Depending on the facts, we might be able to get an Emergency Order to serve on the parent in the other state, or even get an Amber Alert issued and law enforcement involved in getting your child home. https://amberalert.ojp.gov/about/guidelines-for-issuing-alerts
A victim of domestic violence files for an Order of Protection and gets an Order granting them custody in Virginia, in defiance of an Order in Tennessee giving the other parent custody. We can get the provision of the Order of Protection taking custody away from the other parent set aside or enforced (depending on the circumstances that led to the granting of the Order of Protection).
A parent learns their child is being abused by a parent in Alabama. We can get an emergency order that has the judges of both states literally talk to one another, and potentially keep the child safe in Tennessee while the investigation and litigation occurs. TCA 36-6-219.
A grandparent wants to adopt her grandchild. To adopt in Tennessee, a party must have custody of the child in the State of Tennessee. If that child has lived with the grandparent for six months, then we can file the adoption in Tennessee. Otherwise, the grandparent may not be able to petition for adoption at all. https://www.acf.hhs.gov/cb/faq/adoption10
An LGBTQ parent has virtually no custody rights in Tennessee without the protection of marriage and adoption laws. We can file a Motion for an out-of-state LGBTQ parent to attempt to get the case moved to a state with more favorable laws. https://www.lgbtmap.org/equality-maps/other_parenting_lawsEspecially when you consider the cost of litigating your custody case in another state, and the difficulty of getting the evidence in front of the Judge and communicating effectively with your attorney, litigating in your home state becomes very important. To increase the chances of that happening, you are going to need a competent lawyer to wind you through the jurisdiction requirements. That’s where we can help