The key question in cases where the child’s parents live in different states is “which state’s courts will decide what the child custody and visitation arrangement will be?” The answer to this question can be very important to parents who are involved in a custody or visitation dispute. The parent who lives in the state with jurisdiction will have an advantage. That advantage increases the farther away the other parent lives.
In Virginia two laws apply to interstate child custody cases. At the federal level, the Parental Kidnapping Prevention Act (PKPA) establishes a few rules that all states must follow. It requires the states to enforce each other’s child custody decisions and only allows them to modify another state’s decision in limited circumstances. Despite the name, this statute does not criminalize anything.
At the state level, Virginia has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Two basic concepts established by this law are the child’s “home state” and “continuing exclusive jurisdiction.” “Home state” is defined as where the child lived for the six months just before the case was filed. “Continuing exclusive jurisdiction” means that a state has the exclusive authority to decide child custody and visitation issues.
One feature of the continuing exclusive jurisdiction rule is that if one parent moves away from the state where the case was first decided, jurisdiction stays in that state so long as the other parent continues to live there or until that state decides to decline jurisdiction. For example, if the parents divorce in Virginia and the mother is awarded custody and she moves to California, so long as the father continues to live in Virginia, the Virginia court will have jurisdiction over child custody and visitation issues. After the passage of some time, however, the mother can ask the Virginia court to relinquish jurisdiction to California because all of the evidence relating to the child is there. If the mother has been difficult with respect to visitation, the father will want to try to keep child custody and visitation jurisdiction in Virginia.
Two Important Observations
In child custody cases, the choice of forum (the state where the case will be heard) matters a great deal. You should carefully analyze the advantages of each place. You may find it necessary to employ lawyers in both states to influence the choice of forum. Never rely upon a lawyer in one state to protect your interests in a court proceeding that is going on in another state. The one exception to this rule would be lawyers who regularly practice before the courts of both states.
- When there is no court order, you are at risk of losing custody of your child to the other parent who lives far away. Parents who live in other countries are a special case and present enormous perils. Germany in particular has a very bad record of favoring its citizens over the American parent in child custody cases. It is extremely unwise to send a child to visit such a parent without first having a court order that says you have custody of the child.
- Cases where the two parents are US citizens living in the United States are risky enough. It is very unwise to ever send your child to visit a parent in another state until you have a court order establishing that you have custody of that child. In many instances a trusting parent has done this only to have the other parent keep the child, go to court in their jurisdiction, and win a child custody order making them the primary caretaker. If this happens to you, it is important not to wait but to file a case in your state immediately. If you wait six months the other parent’s state will have jurisdiction and you will have to do the case there.
Bob Jeffries is a Virginia child custody attorney who has handled a large number of interstate child custody cases and is very familiar with the UCCJEA and how to use it to his clients’ advantage. If you have a Virginia child custody case in Hampton, Newport News, Norfolk, York-Poquoson, Portsmouth, Suffolk, Chesapeake or Virginia Beach, Bob Jeffries has the knowledge and experience to protect your rights in an interstate custody case.