Location and Your Court Case

Location and Your Court Case

As a long distance parent, you live in one place and your child lives in another. It’s possible that there is even a third location involved if your child has relocated since the custody case was decided. Here are some details on the intricacies related to location involved in a long distance custody court case, that will be helpful as you put together your legal parenting plan.

Jurisdiction

Jurisdiction, in your situation, 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 – it has to be filed in the state that has jurisdiction over the divorce and custody case. A state that does not have jurisdiction will not give you a court order.  They will defer to the state that has jurisdiction.  Sometimes this means starting over.

Most US states and territories have adopted the Federal Uniform Child Custody Jurisdiction and Enforcement Act, which simplifies which state has jurisdiction over a custody case.  As of the last update to this post, there are still two holdouts (Massachusetts, Puerto Rico).  The UCCJEA  Establishes jurisdiction thusly :

The UCCJA based jurisdiction on a child’s close affiliation with a State. Specifically, it established four jurisdictional grounds:

  • Home State (reserved for the State in which the child has lived for at least 6 months preceding commencement of the action).
  • 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).

Of import to long distance parents, the first two bullets can be a matter of argument in some cases, depending upon who the child has resided with and how long, where an already existing court order was made, or other ‘significant connections’.

Changing Jurisdiction

If there was a previous court order in a state that should no longer have jurisdiction of the case (you, the child and the child’s other parent once lived in say, TN, and that’s where you got your first court order, and now you live in NY and the child and their other parent lives in OR), or in any other case in which jurisdiction needs to be changed. The first step will always be to file a petition with the state that should have jurisdiction, to have jurisdiction moved to that state.

If you do not start with that petition and get the jurisdiction changed first, when you file your motion to change the court order, the state will refuse to hear the case.

The petition, in general, tells the new state why it should have jurisdiction of the case.  It will require all previous case information.  Each court might have it’s own forms and process for filing this petition.  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.  I am guessing, like with all things, that each state and each state combination is slightly different.

Every State is 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 cases, motions etc in the specific county courthouse managing the case. So for instance, if your child lives in Buckaroo County of Wyoming, you will follow Wyoming laws – but you will file everything int he Buckaroo county courthouse.

Each county courthouse could have slightly different processes and has different contact information – so 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

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 so it is often prudent to choose an attorney near the courthouse that will hear the case.

It’s worth mentioning that no online resource (including this website) can legally be considered to be giving you legal advice. How’s that for a tongue twister. 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 this should not be construed as legal advice. Please seek legal advice from a licensed attorney.

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