When two people have a child or children in common and ultimately decide not to stay together – whether that means divorce or the couple was never married but are going their separate ways – child custody becomes an important issue. And the problem becomes even more complex when one parent moves from the original home state of the family to a different state. If this happens to you, it is important to know some basics about how interstate custody arrangements work, and who makes the decision.
Understanding the Basics
One of the most pressing considerations when one parent has relocated is determining which state court has the authority to determine appropriate child custody arrangements. For example, if Tammy and Joe lived in Florida while they were married and had a daughter named Nikki during the marriage but then got divorced, which state court decides custody?
In the above scenario, the answer is simple. All parties live in Florida, so Florida has jurisdiction to decide the custody arrangements for Nikki. But if Joe moves to Tennessee in a few years, what happens now? Chances are that the custody arrangement ordered by the Florida court no longer applies since Joe is now a couple of states away, and a new (or modified) custody arrangement must be determined. But where would Joe file his motion to modify custody – Florida or Tennessee? This is where the UCCJEA, and the PKPA come in.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) was created to assist courts in determining jurisdiction in cases like the one described above. The UCCJEA also dictates which of two or more conflicting orders from different states, that are already in place, are currently enforceable. For instance, before the UCCJEA was enacted a judge in Florida could enter an order requiring each parent to equally share time with Nikki, while a judge in Tennessee could enter an order giving Joe primary residential custody. But with two equally valid state court orders in place, who wins? Which order is enforced? As you can see, chaos was the result of such jurisdictional conflicts until the UCCJEA was adopted.
Currently, Vermont and Massachusetts are the only states in the union that do not recognize the UCCJEA. All other states use it to help settle disputes like the one presented above. Essentially, the Act provides a hierarchical structure for determining which state has the power to enter an enforceable original order or modification regarding custody. In order of priority, the factors are:
- Home state of the child
- Significant connections
Home State of the Child
The first question the court will consider is which state qualifies as the child’s home state. The law defines “home state” as the state wherein the child has lived with a parent for at least the past consecutive six months prior to either parent filing suit. Usually this is not difficult to determine. However, if a parent has wrongfully taken a child from a custodial parent and hidden them in another state for over six months, the state wherein the child was hidden will not be considered the home state. This is the most important consideration, and all subsequent considerations only come into play when the home state cannot be determined (i.e., the child has moved around so much recently that they have not remained in their current residential state for the required six month time period).
The second factor in determining jurisdiction would be looking at the state wherein the child has the most significant connections. So if the child has been in Oregon for only 4 months, but their school is there, their pediatrician is there, their friends and some family are there, these are all significant connections to Oregon. If no state qualifies as the child’s home state, the judge determining jurisdiction will declare the the state wherein the child has the most significant connections to be the jurisdictional winner.
When a child has been removed from his or her home state for fear of abuse or neglect, the new residence will typically be deemed the state wherein any custody determinations need to be made. This only stands to reason, as no judge wants to send a child back to an abusive situation purely for jurisdictional reasons.
None of the Above (Default)
If there is not a state that meets any of the above criteria, then the judge who is looking over the case can simply declare their state to be the one that has jurisdiction.
These factors dictate whether or not a judge in one state has the power to determine an original custody arrangement or modify an existing one when out-of-state jurisdictional issues are involved.
The federal Parental Kidnapping Prevention Act of 1980 (PKPA) was put in place to ensure that:
- If a court in another state issued a valid order regarding custody (valid insofar as it exercised proper jurisdiction as per the UCCJEA and it’s own state laws); then
- All other state courts are obligated to enforce this order.
In other words, once a state court enters a valid judgement regarding custody, all other states must honor that judgement. In our example above, if Joe files a motion to modify child custody in Tennessee (his new home state), it most likely will not be heard in Tennessee. Tennessee will defer to the valid Florida custody order, and since Florida is still Nikki’s home state, Joe would have to file his motion there. Or, let’s say that Tammy delivers Nikki to Joe in Tennessee for a Christmas holiday with her dad, and Joe decides not to return Nikki to Florida when the time comes. Tennessee must honor the order of the Florida court and seek to enforce it in whichever way it deems necessary.
Questions about Child Custody in Tennessee?
As you can see, subtle differences in the facts of each case can alter the jurisdictional question significantly. So if you are experiencing any interstate child custody issues, you would benefit greatly from speaking with an experienced attorney in Tennessee. We here at Batson Nolan PLC know how to help you get the very best results possible in your case. To speak with an experienced attorney at our offices in Clarksville or Springfield in confidence, please call us or inquire online today.