While most divorce cases involve parents and children who have resided together in the same state for at least six months prior to filing for divorce, this is not always the case. Sometimes one parent moves out of state during the marriage, with the knowledge of the other parent, perhaps as a trial separation. Sometimes that parent may take the child. When this happens, determining which state would have the authority to make an initial child custody determination becomes challenging.
To help bring consistency to the method of making these determinations, all states have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The goal of the UCCJEA is simple: only one court at a time may have the authority to enter a judgment in a child custody action, and that court retains exclusive authority unless and until it gives up that authority.
How do we determine which state has this authority? The UCCJEA relies on the “home state” of the child as the controlling factor. The “home state” is the state in which the child has resided for at least six consecutive months preceding the filing of a petition for dissolution of marriage. For example, if A and B lived with the child in Missouri for two years but moved to Kansas for three months and A filed for divorce in Kansas, Kansas would not have “home state” jurisdiction because the child had not resided in Kansas for at least six consecutive months, but the child had lived in Missouri for six consecutive months. So, if B filed for divorce in Missouri a week after A filed in Kansas, Missouri would be the only state with the authority to make the custody determination of the child.
But what if we change the facts a little bit. A and B live in Missouri for eight years with the child. B gets a job in Kansas and takes the child to Kansas. After seven months in Kansas, B files for divorce. At this point, the “home state” of the child appears to be Kansas because of the physical presence rule. But the child spent most of her life in Missouri and one parent still lives in Missouri. Did the child really change residence to Kansas? When this happens, the UCCJEA introduces another wrinkle to “home state” jurisdiction called “significant connection” jurisdiction. Where the parents now live in separate states, the UCCJEA does not look only to physical presence. Remember, the goal of the UCCJEA is to discourage parents from picking up and leaving to shop for a state that has more favorable rules regarding custody or merely to cause inconvenience to the other parent. So, when it appears a parent has relocated simply to establish a new residence, but the other parent, the child’s physician and family and other significant connections remain in the state of longer residence, a court – actually two courts – have to decide which state should proceed.
Confused? You would be in good company, as lawyers and judges have trouble interpreting the UCCJEA in complicated situations, which occur more often in our increasingly mobile society. But the process is always the same – look first for home state; if no home state, look to significant connections. In most cases, home state is pretty clear and controls. Another important lesson: trying to leave one state to quickly set up residence for divorce purposes in another state rarely works under the UCCJEA.
Should you need the advice of a divorce and family law attorney or have questions or concerns about your situation, know that we are here to help and discuss those issues with you.