As a long distance parent, you live in one place and your child lives in another. It’s possible that there is a third location involved if your child has relocated since the custody case was decided. It is important to nail down who has jurisdiction and where to file what before you try to get your court order.
Believe it or not, you can file just about anything anywhere and pay the fees. Then later, the court might tell you they can’t hear the case. Or that you need to file a different motion or petition first. That’s a complete waste of your time, money and patience. More than one long distance parent has encountered that headache.
If you file and pay in person, sometimes the clerk can look up critical information to keep you from filing things you don’t need or aren’t ready for. Sometimes though, there is no way for them to know at the time you file. If you have an attorney, they will guide you through the process in a way that avoids that.
Jurisdiction, is essentially the power that a court has (or not) to hear a case. You can’t necessarily file a case against your child’s other parent in the state that you live in. Sometimes you can’t file a motion in the state your child lives in, if they have recently moved. Your case must be filed in the state that has jurisdiction over the divorce and custody case. It’s possible for the state that currently has legal jurisdiction to be a state that neither of you live in any longer. A state that does not have jurisdiction will not give you a court order. Â They will defer to the state that has jurisdiction. Â
Most US states and territories have adopted the Federal Uniform Child Custody Jurisdiction and Enforcement Act. States used to have disparate rules about jurisdiction which caused big loopholes and complication all around. The UCCJEA was meant to simplify which state has jurisdiction over a custody case. Â As of the last update to this post, there are still two places that have not adopted the UCCJEA : Massachusetts and Puerto Rico. Â
The UCCJA bases jurisdiction on a child’s close affiliation with a State. Specifically, it establishes four jurisdictional grounds:
- Home State – the state in which the child has lived for at least 6 months preceding commencement of the action. The action is whatever motion you are filing to adjust custody, child support or your parenting plan.
- Significant connection – exists when a state has substantial evidence about a child as a result of the child’s significant connections to that state.
- Emergency – governs situations such as abandonment or abuse that require immediate protective action.
- Vacuum – applies when no other jurisdictional basis exists.
If you have a court order in a state that should no longer have jurisdiction, the first step will always be to file a petition with the state that should Â have jurisdiction, to have jurisdiction moved to that state.
For example, you, the child and the child’s other parent once lived in say, TN, and that’s where you got your first court order. Now you live in NY and the child and their other parent lives in OR. The child has lived in OR for a year. In this case, you would file a petition in OR to have jurisdiction moved from TN to OR.
If you were to, for example, file a motion to change visitation in TN, TN is likely to refuse to hear the case. If you file the motion to change visitation in OR, OR will want you to officially change jurisdiction before they hear the custody case.
The petition to change jurisdiction, in general, tells the new state why it should have jurisdiction of the case. Â The judge looks at the evidence, hears arguments and makes a decision based upon the UCCJEA guidelines. Because the guidelines are nearly universal in the US, the state losing jurisdiction is likely to agree.
Generally either parent can file it. When you file it, you will need to provide all previous case information. Â Each court might have it’s own forms and process for filing this petition. Â
Believe it or not, you can fight over jurisdiction too though
Often, it’s really clear cut what state has jurisdiction. If the child was born in, and has lived in one state their entire life, it would be hard to argue for jurisdiction elsewhere. However, if it’s more ambiguous, someone might argue for one state over another because that state is more likely to award a favorable outcome.
… And Every State is Different
I have read elsewhere that this process should be started with the state that used to have jurisdiction and should no longer have jurisdiction. However, when I went through this process in ~2008, I started with the state that should have jurisdiction and they did the rest. Â I am guessing, like with all things, that each state and each state combination is slightly different.
As you’ve begun your research for your court case, you’ve probably encountered a plethora of advice that varies from one end of the spectrum to the other. What one state does or allows, another state might not. Not all states even have the same over arching custody types like ‘sole custody’. Research the laws of the state that has jurisdiction in your case via your state court’s website. If you get advice or ideas from an online resource, make sure they pertain to the state that has jurisdiction in your case.
Local Court Specifics
Beyond the state level, you will need to file any motions in the specific county courthouse managing the case. So for instance, if your child lives in Buckaroo County of Wyoming, your case will follow Wyoming laws. However, you will file everything in the Buckaroo county courthouse.
Each county courthouse could have slightly different processes and has different contact information. Look up the specific courthouse that handles the case to find contact information, hours of operation, how to mail in filings etc. In a larger court, you will interact most with the clerk of the family law division.
Attorneys are licensed only in particular states. If you live in Oklahoma and California has jurisdiction over your case, you have to choose an attorney who is licensed in California. You will also want to consider that an attorney might charge travel or appearance fees for a courthouse that is outside their usual area. For this reason, it’s prudent to choose an attorney near the courthouse that will hear the case.
It’s worth mentioning that no online resource is a substitute for legal advice. Make sure that any advice you actually take into the courtroom is from an attorney licensed in the state in which your case is being heard.
I am not an attorney and nothing here should be construed as legal advice. If you have questions about your specific case, please speak with an attorney.