I am often asked whether a child custody matter can be "transferred" to another State after a parent moves from the State where the custody determination was entered. The answer to whether a court in another State can exercise jurisdiction is this: "It depends." All child custody matters are fact-driven.
I will preface my answer to the question whether another State can exercise jurisdiction in a custody matter decided by another State by explaining a little bit about the law that applies. All but 4 States have enacted the Uniform Child Custody Jurisdiction and Enforcement Act. The UCCJEA was enacted to eliminate previous confusion about which State has jurisdiction to make an initial child custody determination, to eliminate the potential for custody matters to be pending concurrently in two different States, and to deter parental kidnapping by providing specific enforcement procedures. Basically, then, most States are operating under the same uniform law.
Let’s use an example to explore this issue:
Defendant father seeks modification of the custody and/or parenting time provisions of a Wisconsin divorce judgment.
Defendant father resides in Michigan. Plaintiff mother and the children have moved to and reside in Iowa.
Where should the motion to modify be filed?
ANSWER: The motion to modify could be filed in Iowa where the children reside with their mother and where significant evidence is available to assist the court in determining the best interests of the children. In an unusual case, where there is substantial evidence available in the State where the other parent resides, a modification motion could be filed there.
DISCUSSION: In the example above, the Wisconsin Court issued the initial custody determination and has exclusive, continuing jurisdiction over the child custody and parenting time issues. However, Wisconsin will likely, when faced with a jurisdictional challenge, rely upon that section of Article 2 of the UCCJEA that allows it to decline to exercise its exclusive, continuing jurisdiction for one of two possible reasons, either
(a) “a court of this state [i.e., Wisconsin] determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships”; or
(b) “a court of this state [Wisconsin] or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.”
Let’s focus for a minute on the importance of the two provisions above.
One parent and the child reside in a State other than the issuing State. Under (a), the court may decline to exercise its exclusive, continuing jurisdiction if the child and one parent reside outside of the State where the initial child custody determination was made, the other parent remains in the issuing State, and modification is sought by the custodial parent in the new State. This is not a slam dunk though, because the statute allows the Court to decline a waiver of its jurisdiction to the other State. If the non-custodial parent continues to reside in the issuing State, and the child has had regular and substantial parenting time in the State so that “substantial evidence is available in the state concerning the child’s care, protection, training, and personal relationships,” then the determination of jurisdiction is going to depend upon the specific facts of the case. Only the issuing State can determine whether exclusive, continuing jurisdiction is lost where one parent remains in the State.
Even where both parents reside in States other than the issuing State, an argument might be made under appropriate facts that substantial evidence is available in the state where the non-custodial parent resides concerning the child’s care, protection, training, and personal relationships. For example, the child may exercise significant parenting time in the State where the non-custodial parent resides. There may be many witnesses available there.
Usually, though, in the absence of allegations of abuse or neglect that come to light during the exercise of parenting time and evidence that might be developed during the investigation of those allegations, one would assume that more substantial evidence is available in the State where the custodial parent resides with the child. [That would not be true, necessarily, if the child is not of school age.]
Additionally, as a practice pointer, the State where a modification motion is first filed will give that parent some tactical advantage.
The determination of which State has modification jurisdiction where one parent continues to reside in the issuing State and the child and custodial parent reside in another State requires the Court having jurisdiction to consider the following while deciding whether that State is “an inconvenient forum” and that another State is a “more appropriate forum:”
(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.
(b) The length of time the child has resided outside this state.
(c) The distance between the court in this state and the court in the state that would assume jurisdiction.
(d) The parties' relative financial circumstances.
(e) An agreement by the parties as to which state should assume jurisdiction.
(f) The nature and location of the evidence required to resolve the pending litigation, including the child's testimony.
(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.
(h) The familiarity of the court of each state with the facts and issues of the pending litigation.
The issue of inconvenient forum may be raised upon the motion of a party, the court's own motion, or the request of another court. The State with jurisdiction may stay proceedings in its court, if need be, but only on the condition that a child-custody proceeding is promptly filed in another designated state.
Before determining whether it is an inconvenient forum, a court with jurisdiction must consider all of the above and must allow the parties to submit information to assist the Court in making its decision.
Neither parent nor the child resides in the issuing State. Under (b), where the child and both parents reside in States other than the issuing State, exclusive, continuing jurisdiction is not lost until one of the parents files a motion to modify the custody determination in another State. Normally, this would be done in the State where the child resides with the custodial parent. But see the caveat above. In this event, since it's easy to establish the non-existence of a question of fact about residency, any Court in which a modification petition is filed may make the determination that the issuing State no longer has exclusive, continuing jurisdiction.
If modification isn’t the issue, but enforcement of the provisions of the custody/parenting time Order is sought, the parent who wants to enforce needs to register the foreign judgment. See my website for forms to use in registration proceedings. Registration forms are You'll need Forms 14 through 19.
See MCL 722.1304 for the requirements for registration.
Jeanne M. Hannah is available to consult with parents and family lawyers about the powerful enforcement tools available under the UCCJEA, whether they are needed to enforce an existing order or are needed to obtain swift return of children who are victims of parental kidnapping. Contact Ms. Hannah at firstname.lastname@example.org or by telephone at 231-223-7864.
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