How is Jurisdiction Determined in a Multi-State Child Custody Case?
Jurisdiction is the power of the court to actually decide a dispute. When parties to a custody dispute (typically a parent but it can be any caregiver who claims a right to custody or visitation with the child) live in different states, it is important to understand which states might have the power to decide that child’s custody.
In 2007 South Carolina substituted the Uniform Child Custody Jurisdiction Act (UCCJA) for the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). S.C. Code Ann. § 63-15-300, et seq. The change was intended, in part, to correct a few loopholes in the power of courts of one state to take jurisdiction and modify another state’s child custody determinations.
In order to analyze jurisdiction, it helps to separate custody cases into three types of situations: emergency cases; modification cases; and initial cases. The term “home state” is often discussed in child custody jurisdiction but “home state” is primarily determinative in initial cases and is of limited importance in modification or emergency situations. Home state is defined in § 63-15-302(7) 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.
Where prior custody orders are referenced in the analysis below, I am assuming that the order complies with the UCCJEA’s provisions regarding jurisdiction. A custody order that fails to meet the jurisdictional requirements of the UCCJEA will be treated by courts of other states as a non-entity.
Even if South Carolina, or another state, has jurisdiction to issue a custody order, it is not required to do so. For example, South Carolina can decline jurisdiction if the family court determines that another state is a more convenient forum to determine child custody:
A court of this State, which has jurisdiction under this article to make a child custody determination, may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion, or request of another court.
Jurisdiction can also be refused if South Carolina obtained jurisdiction “because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct.” § 63-15-344.
Under the UCCJEA, a party can ask the court to take “temporary jurisdiction” under § 63-15-336(A), which provides:
A court of this State has temporary emergency jurisdiction if the child is present in this State and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
If there is no previous child custody determination that is entitled to be enforced under this article and a child custody proceeding has not been commenced in a court of a state having jurisdiction, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction, a child custody determination made under this section becomes a final determination, if it so provides and this State becomes the home state of the child. § 63-15-336(B)
If there is a previous child custody determination that is entitled to be enforced under this article, or a child custody proceeding has been commenced in a court of a state having jurisdiction, any order issued by a court of this State invoking emergency jurisdiction must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction. The order issued in this State remains in effect until an order is obtained from the other state within the period specified or the period expires. § 63-15-336(C).
Basically temporary emergency jurisdiction exists if there is an emergency and the child is present in the state. However such jurisdiction only lasts until a state that has previously exercised jurisdiction has time to get involved in the dispute or until a custody action is commenced in a court that would have jurisdiction for an initial case. Emergency jurisdiction can only develop into ongoing jurisdiction when there are no prior custody orders and no action is filed in a state having jurisdiction before South Carolina becomes the child’s home state.
The power to modify an existing custody order is set forth in § 63-15-332, which sets forth the authority of other states to modify a South Carolina custody order, and § 63-15-334, which sets forth the authority of South Carolina to modify another state’s custody order.
Under § 63-15-332(A)(2) another state can modify a South Carolina custody order if “a court of this State or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this State.” However, if the child or any party continue to reside in South Carolina, under § 63-15-332(A)(1), it requires that “a court of this State 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” before another state can modify a South Carolina custody order.
Basically, before another state can modify a South Carolina custody order either no party nor the child can remain in South Carolina or South Carolina must decide to relinquish jurisdiction.
Similarly, before South Carolina can modify another state’s custody order either no party nor the child can be living in the issuing state [§ 63-15-334(2)] or the court of the issuing state must determine it no longer has exclusive, continuing jurisdiction or that South Carolina would be a more convenient forum. § 63-15-334(1).
The basic analysis for modification jurisdiction is that if a party or the child lives in the issuing state, the issuing state must decline jurisdiction before another state can modify the order. If no one remains in the issuing state, then the jurisdictional analysis is the same as it is for an initial order.
Jurisdiction for an initial case is set under § 63-15-330. It sets forth four tests for jurisdiction, with each succeeding test only applying if no state meets any of the previous tests. Under this section “[p]hysical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.” § 63-15-330(C).
The first test in § 63-15-330(A) is “home state” jurisdiction: “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.” § 63-15-330(A)(1). If the child has a home state and the child or a parent or person acting as a parent lives within the home state, that is the only state that can exercise initial jurisdiction.
Sometimes, however, there is not a “home state” for the child or no one remains in the home state. In such circumstances, one looks at the “significant connection/substantial evidence” test set forth in § 63-15-330(A)(2):
(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.
Even where there is home state jurisdiction, the “significant connection/substantial evidence” test can be invoked to create jurisdiction if “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.” § 63-15-330(A)(2).
More than one state can have jurisdiction under the “significant connection/substantial evidence” test. If no state has home state jurisdiction and child custody actions have been filed in more than one state by invoking “significant connection/substantial evidence” jurisdiction, the courts of each state may confer to decide which state will take jurisdiction. § 63-15-318. However the state where the action was initially commenced is the state that ultimately gets to determine whether to exercise jurisdiction. § 63-15-340.
When no state has home state jurisdiction or “significant connection/substantial evidence” jurisdiction, the third test allows South Carolina to take jurisdiction when:
all courts, having jurisdiction under item (1) [home state jurisdiction] or (2) [significant connection/substantial evidence jurisdiction], 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 [inconvenient forum] or 63-15-344 [unjustifiable jurisdiction].
The final basis for jurisdiction is when “no court of any other state would have jurisdiction under the criteria specified in item (1), (2), or (3).” § 63-15-330(A)(4).
In determining jurisdiction for an initial custody determination, one goes through the jurisdictional analysis step-by-step. First determine whether any state has jurisdiction as the child’s home state. If so, that is the only state that has jurisdiction. If no state does, next determine whether any state meets the “significant connection/substantial evidence” test. If only one does, that is the only state that has jurisdiction. If more than one does, any state meeting this test can exercise jurisdiction. If none do, determine whether the states that might have home state or “significant connection/substantial evidence” jurisdiction have decided a different state should take jurisdiction as a convenient forum or because the party seeking to invoke that state’s jurisdiction has engaged in unjustifiable conduct. The state that these states have deferred to is the state that has jurisdiction. If there’s no jurisdiction under any of the three proceeding tests, file the initial case where the child is physically located.
Determining child custody jurisdiction can be confusing and often benefits from the advice of counsel. To contact Mr. Forman regarding child custody jurisdiction, click here.