I Live In One State And My Child’s Father Lives In Another State, Where Do We File For Custody?

You may have heard of “forum shopping”, meaning a party chooses to start litigation in a certain state over another because that party believes a certain state’s laws will be more favorable to them. In child custody cases, this is sometimes seen when the parents of a child have multiple residences in multiple states, but more commonly seen when one parent moves out of the state where the parties were residing with the child.

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) establishes four bases for initial jurisdiction for child custody and visitation matters: (1) home state; (2) significant connection; (3) more appropriate forum; and (4) vacuum jurisdiction. In emergency situations, it also allows courts to issue temporary orders and relief.

1) Home state jurisdiction gives the state in which the child lives priority in the initial child custody proceedings. A state has home state jurisdiction if the child is located in the home state when proceedings are commenced or if the state was the child’s home within six months of when the proceedings were commenced and one parent continues to reside in the state. The left-behind parent has up to six months from the child’s removal from the state to commence a child custody proceeding and the home state will still have jurisdiction.

2) Significant connection jurisdiction occurs when a child has no home state or when a home state declines jurisdiction. If the child has sufficient ties to the state and substantial evidence concerning the child is available in the state, there can be significant connection jurisdiction. The child does not need to be physically present in the state.

An example of a state with significant connection jurisdiction would be if the parents have not lived in any state long enough for their child to have established a home state. Parents lived in California for four months, New York for three months. After the three months in New York, father leaves mother and child to move back to California. Parents cannot agree on custody and simultaneously commence separate custody proceedings in New York and California. The parents have not lived in any state long enough for the child to develop a home state. Both New York and California have significant connection, but under the UCCJEA, only allows one state to have jurisdiction. The courts must then communicate with each other and decide which proceeding should continue. If they cannot agree, the first filed case will move forward.

3) More appropriate forum jurisdiction exists when both the home state and the significant connection state decline jurisdiction in favor of another, more appropriate state on the grounds of inconvenient forum or unjustifiable conduct. For example, father lives in California with child, but father is frequently out of town and child is raised by nanny. Child spends half of her holidays with mother in Florida, but mother is also out of town on business and child spends most of the time with a babysitter while at her mother’s. Father is planning to move to Texas, where both sets of child’s grandparents live, so the child can be left with grandparents while not in school. The home state and significant connection state might both decline jurisdiction and allow father to be heard in Texas.

4) Lastly, vacuum jurisdiction provides that if there is no home state, significant connection state, or more appropriate forum, a state may fill the “vacuum” and exercise jurisdiction over an initial custody proceeding. Circumstances in which a vacuum state would be necessary include homeless children, children sent from relative to relative in different states for temporary care, and children of migrant workers or military personnel.