Child custody cases can be difficult enough when both parents live in the same state, but when two states are involved, determining which state’s court has jurisdiction (the power to resolve a dispute) can make a difficult situation worse. Usually, parties are already in dispute over the custody issue itself, so adding the issue of where to resolve the custody dispute creates yet another dispute. However, most states, including Georgia, have adopted a uniform law to determine the appropriate state jurisdiction when this situation occurs. This law is called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), enacted in Georgia in 2001, and embodied in O.C.G.A. §§ 19-9-40 through 19-9-104. The UCCJEA clarifies jurisdiction between multiple states in an initial child custody determination, as well as in modifications of existing child custody orders. This article gives a quick look at how the UCCJEA allows courts to determine which state’s court has jurisdiction over custody disputes between parties that live in different states.
Initial Child Custody Disputes:In order to discourage multiple states from taking jurisdiction over an initial child custody dispute at the same time, the UCCJEA prioritizes which state should have jurisdiction in the following order:
- Home State Jurisdiction
- Significant Connection Jurisdiction
- More Appropriate Forum Jurisdiction
- No Other State Jurisdiction
HOME STATE JURISDICTION:
First, the UCCJEA will consider the child’s home state as having first priority jurisdiction over the dispute. The child’s home state is the state in which a child lived for at least six (6) consecutive months immediately before the commencement of a child custody proceeding with:
(1) at least one parent;
(2) both parents; or
(3) person(s) acting as a parent.
In the case of a child less than six (6) months of age, the home state is the state in which the child lived from birth with any parent or person acting as a parent. A period of temporary absence of any of the mentioned persons is still considered part of the period. Additionally, a child’s home state keeps its status for six (6) months after a child is relocated to another state, as long as a parent or person acting as a parent remains in the home state.
Therefore, the child’s home state must make the initial child custody determination, unless the home state declines to assert jurisdiction.
SIGNIFICANT CONNECTION JURISDICTION:
Second in priority under the UCCJEA is significant connection jurisdiction. If the child’s home state declines jurisdiction, then the child will not have a home state. When this happens, the state with a significant connection with the child may exercise jurisdiction. Significant connection is defined as:
- A significant connection between the child and the state; AND
- Substantial evidence that the child’s past, present, or future care exists in the state.
The child’s presence in the state is not required to show significant connection jurisdiction. As a result, multiple states may be able to claim significant connection jurisdiction. If that happens, the court where a child custody proceeding is filed first will have jurisdiction under significant connection jurisdiction.
MORE APPROPRIATE FORUM JURISDICTION:
Next, a court with a more appropriate forum may exercise jurisdiction over the custody proceeding if the court with Home State Jurisdiction and the court with Significant Connection Jurisdiction BOTH decline jurisdiction. A court may decline jurisdiction if it is an inconvenient forum and a court of another state would be more appropriate.
NO OTHER STATE JURISDICTION:
Last, if no court asserts Home State Jurisdiction, Significant Connection Jurisdiction, or More Appropriate Forum Jurisdiction, then a court may assert No Other State Jurisdiction. This is very RARE.
Modifications of an existing custody order: In addition to prioritizing which state should have jurisdiction to resolve an initial custody determination, the UCCJEA also clarifies which state will have jurisdiction to modify an existing custody order.
For example, let’s say State A made an initial custody determination and sometime later, one party wants to modify custody. If the child’s home state has changed from State A to State B, the UCCJEA clarifies whether the modification should be resolved in State A or State B.
State B may be able to assert jurisdiction under two scenarios. First is if State A no longer has exclusive continuing jurisdiction. However, State A will likely have exclusive continuing jurisdiction and be the proper state to bring a modification action. A court that makes an initial custody determination maintains exclusive continuing jurisdiction as long as:
- The child, the child’s parents, or any person acting as a parent has significant connections with the state and substantial evidence concerning the child’s care, protection, training, and personal relationship is available in the state; OR
- The child, the child’s parents, or any person acting as a parent presently resides in the state.
The second way State B may be able to assert jurisdiction in a modification proceeding is if State A declines to exercise jurisdiction after determining that it is an inconvenient forum and that State B is a more appropriate forum.
Therefore, when any custody case involves parties in different states, jurisdiction must be proper in accordance with the UCCJEA. Child custody disputes are challenging whether they are the initial determination or a subsequent modification. When parents live in different states, determining jurisdiction pursuant to UCCJEA can be very confusing, so an experienced family law attorney may be able to help.
Sources: O.C.G.A. §§ 19-9-40 through 19-9-104; Fish v. Fish, 596 S.E.2d 654 (2004); Croft v. Croft, 680 S.E.2d 150 (2009).Tweet
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