In the 1960s, it was common for a parent and child(ren) to take a “vacation” to another state, file divorce, and have this new state decide custody matters. Ultimately, this gained enough attention that the laws changed, as this new state would not have the necessary evidence to decide custody fully in a child’s best interests, and as a policy matter, “rewarded” a parent who fled to avoid a court best positioned to decide divorce, custody, and property matters.
For this reason, more or less uniform child custody jurisdiction laws1 were passed in the states, including Indiana.2 This is helpful when a parent and/or child moves during a custody proceeding or afterward to avoid multi-state litigation (i.e., two states in dispute over who should decide pending issues). If you are in such a situation, there are four key considerations to be aware of as to the forum or state which will likely decide a case.
First, if a parent simply absconds with a child and files a divorce, custody, or protective order actions, the state where the child has lived since birth or for the last six months will ultimately wind up with the action. This may take some time to accomplish with distance, but this avoids a parent who stays at “home” from litigating in a far flung place and allows the court best positioned (where the child has lived) to decide custody.
Second, once a case is set in a state, this continues to be where child custody matters are heard. This includes modification after the initial divorce or custody proceeding (such as in paternity cases). This is known as the continuing jurisdiction of the child’s home state court.
Third, courts ultimately want to make custody decisions in a child’s best interests. To do so, they need information about the child’s current environment. For this reason, the state with continuing jurisdiction can relinquish this to another state. Many courts are likely to do so where a parent and child have relocated to another state. If not, it creates burdens to get the evidence before the original court where the child does not live.
Fourth, once a child(ren) and parents no longer live in the original (or initial “home ”) state, it is mostly likely a court will relinquish jurisdiction to a court in a state where a parent and/or parent or child live. Thus, in cases where there are children, different courts in different states may be involved until the child is legally no longer subject to its jurisdiction. This typically necessitates an attorney in both states and the two courts communicating with each other to decide which court will hear the case.
Where jurisdiction is involved (which in technical terms may be subject matter jurisdiction or personal jurisdiction if you are reviewing the information on the web), this is a very factually and legally technical area where a skilled attorney in this relatively obscure area of the law may be of great value to you.
We hope this blog’s educational material is of use to you. It is not intended as specific legal advice. Dixon & Moseley, P.C. attorneys practice throughout the State of Indiana.