Interstate Child Custody Cases
In the Hampton Roads area, many child custody cases involve parents living in different states. There is a uniform law that all of the States except Massachusetts have adopted. It spells out which State’s courts will make the decisions about child custody. It’s called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). In Virginia it starts with Section 20-146.1 of the Virginia Code.
The basic rule is that the State where the child lived for the six months before the case is filed will have jurisdiction and once a court in that State has made an order about custody or visitation, that State is the only place where those issues can be decided so long as the child or one of the other parties continues to live there. The technical term for this is “continuing and exclusive jurisdiction.” These two rules are the foundation for the law.
For years many lawyers and even some judges were not well-educated about how the law works. Now, however, everyone seems to have the basics down and the problems in applying it only have to do unusual situations that don’t fit easily within the rules. One example I had was an infant who was very young and had lived a short time in Norfolk and then the mother took him to Hawaii. Neither Virginia nor Hawaii qualified under the six month rule. The father tried to argue for jurisdiction here but the judge ruled that Hawaii made more sense.
One problem that comes up with military personnel serving overseas is that when it becomes necessary to file a case for custody there may be no court that has jurisdiction under the basic rule because the child has spent the last six months living abroad. A common problem comes with Naval personnel serving in other countries. Under the UCCJEA’s six month rule the foreign country may be the child’s “home state” where the case should be filed but that country’s courts may not be available to US personnel.
One work-around for this is to file in the U.S. State where the child was living before the deployment and where the parent intends to return at the end of the deployment. The deployment can be considered a “temporary absence” and the time there can be disregarded so that the State where the child was living before can still handle the case. If the parent is not going back to the same state, however, it’s hard to make this option work.
In cases where the rules don’t give a clear answer, the judge where the case is initially filed has the authority to either keep it or send it to whatever other State makes they think is best. The statute in Virginia is 20-146.18 and it has a list of eight factors the judge should take into consideration in deciding where the case should go. The most important consideration is the child’s connection with a particular State and what evidence is available there. For example, if key witness live there, that could tip the decision in favor of that State.
Where the case is litigated can make a big difference. The party who lives in that state has a big advantage. It is especially important not to send a child out of state to visit the other parent unless there is a court order in effect that requires them to send the child back. My piece in the Huffington Post talks about the kind of nightmare problems that can arise if the other parent refuses to return the child.
