Interstate Custody

 

Nearly 50 years ago a commission was formed to devise a uniform law that it was envisioned all of the states would pass, with the primary purpose to prevent something lawyers call “forum shopping” in custody matters.  What was happening would be something like this: Mom in Michigan tosses the kids in the family station wagon and drives off to some state where you can establish residence and file for divorce quickly, say, maybe, Nevada.  Some weeks later dad gets served, and likely before he could begin to deal with what was happening to him, the divorce would go through, mom would have custody of the children and likely be free to go anywhere she chose with their children.  It could have been dad doing that, but 40 years ago more likely it would have happened while he was at work and more moms were stay-at-home moms, with time to plan and go.

The commission came up with a well-crafted law, the Uniform Child Custody and Jurisdiction Act and- the remarkable piece- all the states adopted it.  A later version, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), even better-crafted, was later adopted.  Described as uniform, there often are differences in the statutes in other states where I have had cases, but the core essentials are uniform and the UCCJEA is effective, both as a deterrent (the initial concept), but also as an enforcement tool (as it is now).

There are two very different reasons to consult with a lawyer about interstate custody.  The primary reason is when the other parent is threatening to move to another state with your child or has actually moved to another state seeking to establish custody there.  A secondary reason would be if you are a parent who wants to move with your child to another state, and in that case, you would need counsel as to what you can legally do to accomplish it, most likely a motion filed in this state, a “move-away” motion which, if the court grants it, would enable you to move with the children.  It is critical to get legal advice: for example: parents have an equal right to custody; if there are no custody orders and one parent takes the children to another state, it is a felony (with certain exception). 

I’ve been working UCCJEA cases since I started practicing law.  It involves being familiar with both our statute and the one in the state where the children have been taken.  It has a lot to do with establishing that California has jurisdiction, that California is the state than can make the initial orders regarding custody and visitation.  Often that takes a motion and factual and legal argument to achieve.  Once jurisdiction is determined, the court hear can hear the matter and make the decisions as to which parent has custody and visitation.  That is true if my client is in California and the child in another state.  There are other cases where my client is in another state but the child in California, so the argument is that California does not have jurisdiction.

At times, sometimes requiring a motion, the judge in California and the other state conference, talk to each other. 

In one case I was able to persuade the court to set a telephonic hearing: the father, his attorney and I were here in a California courtroom, and the mother, my client, and her attorneys in her state and father’s attorney in her state were in a courtroom there.  The judges were interfacing, the judge in the other state was asking questions of the father in California.  At the end of the hearing, the California court denied jurisdiction and ordered the father return the children to the mother in 24 hours, which he did.

If interstate custody is your issue, I have the experience and expertise to help you.

International:  See Child Abductions.