Virginia child custody cases are subject to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). If either parent does not live in Virginia, they should consider whether it would be better for them if their Virginia child custody case were moved to their own state. If, for example, your custody order is from a court in Colorado, and you have lived in Colorado continuously since the order was made you would probably want to ask that any case about child custody or visitation that is filed in a Virginia court be dismissed. Under the UCCJEA, Colorado has continuing and exclusive jurisdiction. That means that, unless the other parent can convince the Colorado court to relinquish its exclusive jurisdiction, the case must be done in Colorado.
A common scenario is that the parent who has custody and lives in another state sends the child to Virginia for a summer visit. The other parent files a custody case in Virginia, asking that custody be changed to them. Sometimes this is accompanied by a claim that there is an emergency that requires an immediate determination of child custody in Virginia. Usually the claim of an emergency is based on an allegation that some kind of abuse has occurred in the other state.
The UCCJEA does permit this kind of emergency jurisdiction. However, because there is a child custody order from another state, the order must have a time limit. Virginia Code Section 20-146.15 says:
“If there is a previous child custody determination that is entitled to be enforced under this act, or a child custody proceeding has been commenced in a court of a state having jurisdiction under §§ 20-146.12, 20-146.13 or § 20-146.14, any order issued by a court of this Commonwealth under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction. The order issued in this Commonwealth remains in effect until an order is obtained from the other state within the period specified or until the period expires.”
In this situation, the out-of-state parent needs to have a Virginia child custody attorney make a motion in the Virginia court to either dismiss the case or put a short time limit on the emergency order. A common mistake is to rely on a lawyer in the other state to take care of this kind of situation. You should never rely on a lawyer who is licensed in one state to take care of a matter that is in a court of another state where they do not have a license. The lawyer in the other state should instead assist you in finding a competent Virginia child custody attorney to help you have the Virginia case dismissed.
If you need legal advice about your Virginia Divorce call us now to (757) 491-0240 or (757) 619-5304