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Common misconceptions about multi-state custody jurisdiction

At least a few times each month I receive a phone call or email from someone involved in a multi-state child custody case.  Since I deliberately restrict my practice to South Carolina, generally these folks get referred elsewhere.  However in communicating with these multi-state custody litigants, I perceive that they are frequently receiving inaccurate information, often the same inaccurate information, regarding jurisdiction–the power of a court in a particular state to decide custody.

Misconception one: “home state” determines custody

The most common misconception is that “home state” determines jurisdiction.  The UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act] defines “home state” as:

the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

S.C. Code § 63-15-302(7) [all references to the UCCJEA in this blog will be to the South Carolina version].

“Home state,” basically the last place the child lived for a consecutive six-month period, is vital to deciding jurisdiction in an initial case.  However, the “home state” only decides jurisdiction in an initial custody determination and only if the child, a parent, or a person acting as a parent continues to live in the home state.

The UCCJEA sets four grounds for authorizing jurisdiction with each of the succeeding grounds having lower priority (that is, one only goes to the next ground if no state has jurisdiction under the previous ground).  Those grounds are:

(1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State, but a parent or person acting as a parent continues to live in this State;

(2) a court of another state does not have jurisdiction under item (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under Section 63-15-342 or 63-15-344, and:

(a) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and

(b) substantial evidence is available in this State concerning the child’s care, protection, training, and personal relationships;

(3) all courts, having jurisdiction under item (1) or (2), have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under Section 63-15-342 or 63-15-344; or

(4) no court of any other state would have jurisdiction under the criteria specified in item (1), (2), or (3).

S.C. Code § 63-15-330.

Note that “home state” is only a basis for jurisdiction if the child, a parent, or a person acting as a parent continues to live in the home state.  If none of these folks continue to live in the home state, there is no home state jurisdiction.  For example, if California is a child’s “home state” but mother and child move to Tennessee and father moves to Oregon, California would not have jurisdiction to decide custody.

Misconception two: “home state” always has priority in jurisdiction

While home state jurisdiction, if it exists, has priority in initial custody determinations, it is of greatly diminished importance in modification actions.  A state retains exclusive jurisdiction to modify its own custody order so long as it has jurisdiction under any of the tests for an initial custody case and so long as the child, a parent, or a person acting as a parent remains in the issuing state. S.C. Code § 63-15-332.  Thus, a child could have left the issuing state years ago but so long as the other parent remains in the issuing state and so long as there is substantial evidence concerning the child’s care, protection, training, and personal relationships in the issuing state, that state will retain continuing exclusive jurisdiction to modify child custody, even if it stopped being the home state years ago.

Misconception three: the child’s “home state” never needs the issuing state’s permission to modify custody

Assuming that the child, a parent, or a person acting as a parent remains in the issuing state, another state can only modify custody if the issuing state’s court “determines that neither the child, the child’s parents, and any person acting as a parent do not have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child’s care, protection, training, and personal relationships.” S.C. Code § 63-15-332(A)(1).

Misconception four: one always needs the issuing state’s permission to modify custody

If the child, the child’s parents, or any person acting as a parent does not presently reside in the issuing state, another state does not need the issuing state’s permission to modify its custody order.  S.C. Code § 63-15-332(A)(2).

Misconception five: a state needs to be the “home state” to modify another state’s custody order

If the child’s home state no longer has the ability to modify custody–because neither the child, a parent, or a person acting as a parent remains in the home state–any state that meets the initial jurisdictional requirements can modify custody.  Often such jurisdiction may exist simply because the child and custodial parent are physically present in a new state and the other parent lives in a state in which there is not substantial evidence concerning the child’s care, protection, training, and personal relationships.  For example, if there is a custody order in California and mother and child move to Tennessee and father moves to Oregon, Tennessee would probably immediately have jurisdiction to modify the California custody order, and it wouldn’t even need California’s permission to do so.

Misconception six: a parent with physical possession of a child always needs to obey a foreign state’s custody order

When a foreign state issues a custody order that a parent believes is not valid, that parent is not required to obey that order.  Instead, that parent may require the other party to enforce that order through the UCCJEA’s registration and enforcement mechanisms.

There are registration and enforcement mechanisms within the UCCJEA for one state to enforce another state’s custody order.  In South Carolina, these mechanisms are contained within code sections 63-15-350 through 382.  Among these enforcement mechanisms are provisions allowing the court to issue warrants to take physical custody of a child and the authorizing the assistance of law enforcement to retrieve the child.

Under S.C. Code § 63-15-354 (A) the courts are directed to enforce another state’s custody order if that order issued in “substantial conformity” with the UCCJEA.  However, when another state’s custody order is issued without this “substantial conformity,” a state is under no obligation to obey or enforce the foreign order.

The UCCJEA contains provisions authorizing the imposition of fees and costs, “including costs, communication expenses, attorney’s fees, investigative fees, expenses for witnesses, travel expenses, and childcare during the course of the proceedings.” S.C. Code § 63-15-372.  Thus, a parent who simply refuses to comply with a foreign state’s custody order without good cause opens him or herself up to a substantial fee award.  However, when the issuing state clearly lacked authority to issue a custody order, there is nothing inappropriate about requiring compliance with the registration and enforcement provisions of the UCCJEA before complying with the foreign custody order.

Many attorneys who “practice” family law do so as a small part of their overall practice and, as family law gets increasingly complex, attorneys who aren’t fully versed in multi-state custody cases shouldn’t be handling such cases.  The question I tell multi-state custody litigants to ask prospective attorneys is “How does the UCCJEA apply to my case?”  If the answer is “huh,” I suggest these litigants continue searching.

For further reading, please see: How is Jurisdiction Determined in a Multi-State Child Custody Case?

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