In law, there are innumerable situations without clear answers. With this particular question, as a general rule, the answer is, “probably not”. This was somewhat common in the 1960s and 1970s. As a result, the states eventually adopted a version of the Uniform Child Custody Jurisdiction Act.1 This law provides a mechanism for states that are competing over the matter between two parents to resolve their dispute over at least custody of the children. This is a mechanism for two states in a divorce or paternity/custody case to decide who will handle and decide the case. Under this Act, when the procedures are invoked, the judges talk and sometimes have simultaneous hearings to determine which state should maintain the case and decide at least custody. This is the topic of this blog post.
The common best interests of the children comes into play in this and every custody, parenting time, and visitation decision. In all jurisdictions, and under this Act, the most important consideration for judges in deciding custody cases is what is in the children’s best interests. For this reason, in most all cases, the evidence is in the state where the children have lived for the last six months. Under the UCCJEA, this is the child’s “home state”. In most cases—but not all of them– the Act anticipates the answer to the question posed by this blog is “no”–you cannot move and file for legal separation or divorce and have the case decided in another state just because you are there and are closer to your support network. In addition, unlike the past, most states have residency requirements (how long you have lived there and intend to stay without return to the state you came from) that must be met before you can file. However, not all states have such requirements.
Ultimately, there are situations where there is no “home state” for the children or there is an emergency situation such that the children should not return to their home state, if any, for safety or other emergency reasons. In these cases, the Act allows the court to exercise emergency jurisdiction and/or the residency requirements do not apply. If there is a dispute by the other parent of the child, then this is where the judges conference and potential hearings will occur on the record in both states—meaning you need an attorney versed with the Act representing you in both states to best protect and advocate your position—depending on if you are the parent with the child or seeking return to the “home state” or disputing there is a “home state”.
Having noted this, it is of key importance to understand when there is litigation between two states for custody issues, you should have counsel in both states working together to protect your interests. If not, the state where the child is located at may obtain an order from the child’s actual or alleged home state, and once properly registered, issue a Writ of Assistance. This allows law enforcement officers, who ordinarily address criminal matters, to assist with removing the child and returning him or her (or them) to their home state.
Interstate (and international) custody disputes are complex legal matters that need skilled legal counsel to protect your interests. We hope this blog post helps you understand some of the basics, such as the power of the child’s “home state” to most often decide interstate custody cases. This blog is written by attorneys at Dixon & Moseley, P.C. who handle custody cases throughout Indiana and interstate cases under the Act and the Hague Convention on the Civil Aspect of Child Abduction. This blog is not intended to be legal advice or a solicitation for services. It is an advertisement.