How Is It Decided Which State Will Have Jurisdiction In My Custody Proceeding? And Can I Change Jurisdictions?

Initially, the state will have jurisdiction to make a child custody determination only if: a) that state was the home state of the child on the date the action was started, was the home state of the child within six months before the action was started and at least one parent continues to live in the state; b) another state doesn’t have jurisdiction or c) no state would have jurisdiction under that analysis. Once a state makes an initial custody determination though, that state has continuing jurisdiction of the child custody matter unless and until another state takes jurisdiction. There are similar, if not identical, rules in each of the 50 states governing how child custody jurisdiction works and that is governed by the UCCJEA, which has been adopted in all 50 states.

What Does The UCCJEA Stand For? Does It Apply In Utah?

The UCCJEA stands for Uniformed Child Custody Jurisdiction and Enforcement Act. It does apply in Utah and has been adopted in all 50 states so that there are no disputes between states about who should have jurisdiction or how jurisdiction to make a child custody determination should be handled. Earlier, we discussed how an initial child custody determination is made including that the state where the action is filed needs to have been the “home state” of the child on the date the action starts or within six months before the action started. Home state, under the UCCJEA, is defined as “the state in which the child lived with the parent or a person acting as a parent for at least six consecutive months immediately before the commencement of the child custody proceeding. If the child is less than six months of age, then the term means the state in which the child lived from birth with a parent or a person acting as a parent.”

When Might I Need To Consider Trying To Change Jurisdiction In A Child Custody Matter?

There can be a variety of circumstances where one parent may wish to attempt to change jurisdiction from one state to another. These might include such circumstances as:

  • When both parents have moved away from the state where the original custody order was made.
  • If the state with the original jurisdiction has become an “Inconvenient Forum” to continue hearing issues of custody and visitation.
    • In determining whether a state has become an inconvenient forum to continue exercising jurisdiction, courts are required to consider:
      1. Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.
      2. The length of time the child has resided outside of the state.
      3. The distance between the two states being considered.
      4. The relative financial circumstances of the parties.
      5. Any agreement between the parties as to which state should assume jurisdiction.
      6. The nature and location of the evidence required to resolve pending litigation, including the testimony of the child.
      7. The ability of the court of each state to decide the issue quickly and the procedures necessary to present the evidence.
      8. The familiarity of the court of each state with the facts and the issues of the pending litigation.

If a court determines that it is an “inconvenient forum,” it is required to “stay” (put a hold on) the proceedings, suspending them upon condition that the custody action will be commenced in the other state quickly.

  • If a person invoking jurisdiction has engaged in an “Unjustifiable Conduct”; however, unjustifiable conduct is not defined and is rarely used as a reason to change jurisdiction.
  • Temporary emergency circumstances to address problems like abuse, neglect, abandonment, etc.

Can The New State Take Jurisdiction From The State With Original Jurisdiction Or Does The State With Original Jurisdiction Have To Give Jurisdiction To The New State?

  • If neither parent nor the child is still living in the state who made the original custody determination, which has ongoing jurisdiction, then the new state can take jurisdiction without the formal permission of the state with original jurisdiction.
  • However, if one of the parties continues to live in a state with jurisdiction, then the new state cannot take the jurisdiction away. Instead, the judges from the two different states must have a discussion, and the judge in the state with jurisdiction has the discretion to decide whether to give jurisdiction to the new state; that is called a “UCCJEA conference.” Generally, that happens over the phone.
  • In order for such a telephone conference to occur between judges, normally a motion to change jurisdiction must be filed in each state asking the two different judges to confer with one another and giving each other the name and contact information of the other judge. As a result, the party wishing to change jurisdiction where one party continues to live in the state with original jurisdiction often must hire an attorney in each state to file the appropriate motion.
  • However, if neither party is living in the state that has continuing jurisdiction over the child custody matter, then the party wishing to change jurisdiction to their state generally only has to file a motion in one state – theirs.

For more information on State Jurisdictions In Custody Proceedings, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (801) 616-3301 today.

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*Child Welfare Law Specialist Nat’l Assoc. of Counsel for Children