Child custody laws are established by each state, and differ from state to state. Because of this, it is essential for the courts and any lawyer helping clients deal with custody issues to establish a “home state” for the child who is the subject of a custody hearing in order to apply the applicable state law to any decisions that must be reached. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) was passed in Texas in 1999. It exists to allow states to determine a child’s “home” state; that state will then render custody decision without interference the laws of other states. Attorneys refer to this Act to help parents understand the significance of determining a child’s home state and how home state jurisdiction affects the application of custody laws.
Importance of the UCCJEA
A custody lawyer recognizes the value provided by the UCCJEA in identifying one state to have jurisdiction over child custody decisions to avoid the confusion that may be caused when dealing with multiple states with differing child custody laws. This law, which has been adopted by all U.S. States except Massachusetts, provides a basis for all custody-related decisions and their enforcement by the courts and any representing attorney, as long as the state has been determined to be the child’s home state. This helps avoid ongoing custody battles based on various state laws, giving a lawyer and parents one custody order to follow that cannot be changed or modified by another state’s child custody laws.
Determining The Applicable Home State
An attorney involved in custody matters works to prevent jurisdictional conflicts by determining the home state of the child. The home state can be identified as the place where the child has been living with a parent for six months or longer, prior to the start of child custody proceedings. If this does not apply, other details are looked at, such as where the child was born, if he/she is less than six months of age at the time of the proceedings, or where the mother lives if the child is not yet born.
Jurisdiction can also be affected by ’emergency jurisdiction’ which applies when one parent poses a threat to the child and the other parent, causing the custodial parent to move to another state to avoid any danger to the child. There can also be a ‘significant connection’ with a state when the child has not lived six consecutive months in any state. A decision must still be reached as to which state has the greatest connection to the child and the parents.
Continuing Jurisdiction and Modification of Determination
A lawyer who works with clients concerning the care and custody of a child say the state where child custody decisions were first made retains that continuing jurisdiction, including any modification of a custody order, unless the child’s circumstances change. If the state with jurisdiction determines the child and parent no longer reside in the state, jurisdiction can be transferred to the state where they currently reside. This also applies in situations where jurisdiction is not based on residency, but on significant connection – if that connection is no longer valid or current.
A state without jurisdiction does have the right to exercise emergency jurisdiction and enter a temporary custody order if the child who is a resident in that state needs immediate protection. In such an instance, when the ’emergency’ or danger passes, the original ‘home state’ will resume primary jurisdiction over any further child custody proceedings.
Parents dealing with child custody concerns that involve questions about which state actually has jurisdiction, should consult with an attorney experienced in child custody and jurisdiction law, and the Uniform Child Custody Jurisdiction and Enforcement Act. A dedicated lawyer can help a parent faced with inter-state custodial issues obtain a fair and reasonable decision regarding the custody of their child as individual circumstances warrants.
Reynaldo G. Garza, III
680 E. St Charles, Suite 600
Brownsville TX 78520
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