Which Court Decides Custody When Parents Live In Different States?

May 8, 2017

With divorced parents moving from state to state, parents often battle over which state is best suited to resolve custody modification issues.  Is it the state where the parents lived when they were divorced and custody was initially decided, or is it the state where the children now reside?

The Uniform Child Custody Jurisdiction and Enforcement Act (“the Act”) is a uniform law adopted throughout the United States.  The Act creates a framework for courts to decide this jurisdictional issue.

When parents reside in different states, the Act is used in determining which state’s court should decide the custody case.  This determination is critical because it is much more advantageous to the parent to have the court where he or she resides decide custody modification issues. Having the court in your back yard decide these important issues can be a game-changer.

The court that initially determines custody has exclusive, continuing jurisdiction if one of the parents still resides there; but, that court may decline to retain jurisdiction if the court of another state (typically where the children now reside) is a more convenient and appropriate forum to determine custody and visitation modification issues.

In deciding whether to retain jurisdiction, the court that has exclusive, continuing jurisdiction must consider a number of factors such as (1) the length of time the children have resided outside of that state, (2) the distance between the courts of the two states, (3) the relative financial circumstances of the parents, (4) whether any agreement exists as to which state should assume jurisdiction, (5) the nature and location of the evidence required to resolve the custody determination, including the testimony of the children and expert witnesses, and (6) the familiarity of each court with the facts and issues in the pending litigation, etc.

The court will look at where the children have significant and extensive connections as to their care, protection, training, education, personal relationships and well-being.  Where do the children attend school?  Where do the children’s friends live?  Where are the children’s medical providers?  What family members live near the children? Are there any expert witnesses (such as mental health therapists, psychologists, counselors, etc.) who reside in the state?  Would the expense for those experts to travel to the other state to testify be prohibitive?

The Act requires the Judges of the two states to confer by phone in resolving these issues. The better practice, although not required by the Act, is for the Judges of the two states to conduct simultaneous open court proceedings so that the parents, witnesses and attorneys can be present and can participate in the court proceedings when the judges confer to determine the jurisdictional issue.  After all, which court exercises jurisdiction may have a significant impact on the ultimate custody determination.

For more information, contact F. Kirk Kolodner, Esquire at (410) 986-0830 or KKolodner@Adelberg.com.

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