Divorce With Respect

Out-Of-State Custody

What Is Out Of State Custody?

The Uniform Child Custody Jurisdiction Act (UCCJEA) was enacted to deal with our mobile society, and the UCCJEA deals with the specific question of where an action for custody should be heard. The general functions of the UCCJEA are:

  1. To avoid conflicting orders in different states;
  2. To promote cooperation between states to determine which state is the more appropriate state to make decisions affecting a child or children;
  3. To make sure that custody litigation takes place in the state where the child has the closest connection and where the more significant evidence regarding the child’s care, education, etc., exists;
  4. To discourage continuing litigation over custody issues;
  5. To deter abductions or the removing of children in order to obtain custody awards;
  6. To avoid the relitigation of custody decisions of other states;
  7. To facilitate enforcement of custody orders of other states; and
  8. To promote and expand the exchange of information and other forms of mutual assistance between the courts.

Initial Custody Determination

California may make an initial custody determination if

  1. California is the child’s home state within six months before the action is commenced;
  2. A court of the child’s home state has declined to exercise jurisdiction because California is the more appropriate forum, i.e. the child and at least one parent have a significant connection with California and substantial evidence is available in California regarding the child’s care, protection, training, and personal relationships;
  3. All courts having jurisdiction have deferred to California; or
  4. No court of any other state would have jurisdiction.

Emergency Custody Determination

California may make temporary emergency orders if a child is present in California and has been abandoned or it is necessary to protect the child from mistreatment or abuse. The California court must immediately communicate with the court of another state if there are known proceedings in an effort to resolve the emergency, protect the parties’ and child’s safety and determine the duration for the temporary order.

Modification of Custody Determination

A California court that has made an initial custody determination has exclusive, continuing jurisdiction over the determination until one of the following occurs:

  1. California determines that the child or the child and one parent do not have a significant connection with California and that substantial evidence is no longer available in California regarding the child’s care, protection, training, and personal relationships; or
  2. California or the court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in California.

If a custody order from another state must be modified, the general rule regarding where the order should be modified is:

Does either the child, children, or one parent still reside in the state where the original order was made?

If the answer is yes, and the state has not declined to exercise jurisdiction, the order must be modified in that state. If neither parent nor the children still lives in the original state, the question of where to modify the order depends on the three criteria stated earlier for initial orders. To have an order enforced in another state, a party must file a certified copy of the original order with the state court where enforcement is sought.

Declining the Exercise of Jurisdiction

A state will likely decline jurisdiction if:

  1. The matter is filed in the wrong state;
  2. An action was filed by the parent who has wrongfully taken the child; or
  3. There are simultaneous proceedings (at which time they are handled as explained above).

Each state will enforce an order regarding custody from another state, so long as it has not been modified.

If a child has been wrongfully taken from another state, the court may decline to make any orders regarding the child. Instead the court will notify the other parent and the prosecuting attorney.

Whenever an action is filed, the party filing the action must state whether or not there is currently pending, or has been, an action involving the children in another state. If the court is informed that there is a pending action in another state, the court will not make any orders until the judge has communicated with that court. When this question arises, the courts in both states talk with one another by telephone to determine which state is the more appropriate state to hear the matter. In some cases, a state may decline the matter, without contact with the other state, because it is clear that the matter has been brought in the wrong state.

If an inappropriate action for custody in another state has been served, a motion to quash, in that other state, is necessary. Contacting an attorney in the state where the action has been filed is the best answer. That attorney will appear in court to contest the jurisdiction of the action under the UCCJEA. Simultaneously, an action is filed in the state that should have jurisdiction. As discussed above, the two courts determine between them which state should take jurisdiction.

To learn more about the Uniform Child Custody Jurisdiction Act (UCCJEA) and out of state custody proceedings please contact the family law lawyers at Bartholomew & Wasznicky LLP.