Moving a child away from the other parent
W hen a couple have a child together and decide to not live together, State and Federal laws merge to influence the rights of the child and each parent. When couples are not married, the mother usually retains all custody until paternity can be established and/or there is evidence presented that demonstrates a father-child genetic relationship.
Before 1968, State courts around the country exercised jurisdiction over the custody of a child based on the child’s presence in that State. A parent could simply move from one State to another, and a court in the new State could modify the previous State court’s orders at will. This caused custodial parents to flee their home States at will and forum-shop the most advantageous state friendly to their cause. Child abductions by non-custodial parents were commonplace. In a word, it was chaos.
In 1968 the Uniform Child Custody Jurisdiction Act (UCCJA) was established, and States were required to enforce it in order to receive certain State aid from the federal government.
- Established a Home State – a state is the child’s home State if the child has lived in that state for at least 6 months immediately preceding a court challenge
- A child has a Significant Connection with a state when a state has substantial evidence about a child as a result of the child’s significant connections to that State
- Established procedures when a jurisdictional vacuum exists
- Emergency situations – established rules where abandonment and abuse require immediate protective action
What the UCCJA did not address was the chaos that ensued between jurisdictions and state courts. Two or more concurrent states were still able to issue custody orders, and despite the statutes prohibition on simultaneous proceedings, courts in one State often over-ruled court orders made in another State. (The ramifications of this jurisdictional chaos were more vexing than we detail here, and are beyond the scope of this page).
Enter the National Conference of Commissioners on Uniform State Laws and its improved child-custody jurisdiction and enforcement statute in 1997. The Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) was established and has accomplished the following:
- Clarified provisions of the UCCJA that received conflicting interpretations among the States
- Detailed practices that have effectively reduced interstate conflict
- Added conformity to jurisdictional standards of the Federal Parental Kidnapping Prevention Act PKPA)
- Added protections for victims of domestic violence who move out of State for safe haven
- Grants priority to Home State jurisdiction
- Maintains exclusive jurisdiction to the State in which the original order was issued if that State believes it has a basis to do so, and provides that the issuing State remains the Home State until or unless the child is moved away from the Home State
- Permits courts to exercise emergency jurisdiction in cases involving family abuse and limits the relief available in emergency cases to temporary custody orders
- Orders courts to decline jurisdiction created by unjustifiable conduct
Neither the UCCJA or its successor UCCJEA were intended to resolves differences in custody or visitation cases, but rather determines which States’ courts have and should exercise jurisdiction over specific cases.
The establishment of a child’s Home State is a fundamental element of the UCCJEA. When a child has lived in one State for at least six months, that child has established a Home State. If a child has moved to the new State from another State, and the six months have not elapsed, that child still maintains the prior State as his or her home state until the six month residency has elapsed. In most cases this means that the court in the previous State (that maintained jurisdiction) still has jurisdiction until another State meets the requirements of a home State.
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This permits parents or guardians who still live in the departed State to file petitions or motions with the court in the prior State, which can result in court orders for the departed parent to return to the previous State with or without the child.
All States have adopted uniform child custody laws, but each State legislature has tweaked their laws to suit their residents. Such issues as how far away a custodial parent can move before notifying the other parent and how much notice must be provided before a custodial parent can move vary from State to State. For specific rules that govern your State, consult the Relocation tab in your own State.
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