Every parent has heard or seen a story about a couple whose child is taken and secreted in another state by the other when troubles develop in the relationship. This has been a problem since the 1960s. In 1968, a uniform act was proposed that would ultimately be adopted in all states in some forms by the early 1980s. This blog post generally summarizes the potential use of the UCCJA.
In simple terms, the UCCJA allows a parent who files for divorce or takes action in the state where the child is removed to, to have the courts in both states talk. The point of this communication, usually a phone call, is to allow the child to be returned to his or her home state, namely the place he or she lived before removal. The judges talk, and usually a record is made, and then one state decides which state will be the state for litigation. This generally necessitates an attorney working for you in both states.
However, because of the numerous situations where custody arises, there are other circumstances where a state may exercise jurisdiction and another state may decline, such as if the child has a significant connection to the state he or she is in or no state would have jurisdiction. Also, to avoid a situation where a child is in harm’s way in another state, there is limited emergency jurisdiction.
Primarily within the United States the uniform set of statues adopted in each state is how a child wrongfully taken to another state is removed. Generally, the state courts do not “fight” over jurisdiction under this statute but work together to resolve the dispute. Also, while a matter of state law, one state is not free to ignore another state’s orders because of the Full Faith and Credit Clause of the United States Constitution, which means each state has to enforce the other state’s orders.
Now with counsel, diligence, and working through the legal system, a parent whose child is taken without permission to another state and secreted or a legal action is filed, can with skilled counsel, effectuate the child’s return to his or her car; normally, this is the child’s home state, which is where the child is born or lived for 6 months and has evidentiary ties to the state as to his or her best interests. Very few specific instances may meet this burden for the child’s “home state”.1
This blog post is written by attorneys at Dixon & Moseley, P.C. who handle complex custody cases, including those involving interstate jurisdiction matters, throughout the state of Indiana. This article is not intended as specific legal advice or a solicitation for services. It is advertising and a public service in nature.