Where Is Child Custody Determined When Parents Live In Different States
I moved to Pennsylvania from another state after my spouse and I separated…. Which state will decide my custody matter?
The UCCJEA Determines In Which State Your Child Custody Matter Will Be Decided When Parents Live in Different States
The answer to this question really turns on one key definition in the group of laws which relate to custody jurisdiction across states, known as the Uniform Child Custody Jurisdiction and Enforcement Act. That key definition is “home state”.
The “home state” of a child is the state which has the power to decide the custody matter, provided at least one parent still lives in that state. A child’s “home state” is the state where he or she lived for at least six consecutive months before the custody action began. A child can only have one “home state”.
Essentially, it works like this: On July 1, 2019, I moved from State X to Pennsylvania with my children. My children were born in State X and lived there continuously until the move to Pennsylvania. My former spouse filed for custody in State X on December 30, 2019. Can he/she do that?
Under the UCCJEA, Child Custody Is Usually Determine by the Child’s “Home State.”
The short answer is yes. State X has the right to decide custody until a new state becomes the “home state” of a child. A child cannot acquire a new “home state” until he/she has lived in that new state for at least six months. In the scenario above, the spouse filed in State X just a few days before Pennsylvania would have automatically become the new “home state”.
You may say, but my spouse knew that I was moving to Pennsylvania because of our separation, and he/she agreed that I could… Do I have to go back to State X for custody hearings?
The answer is maybe not. Even though State X is the “home state” of the child, you could object to State X making the decision if you can prove to the court that State X is an “inconvenient forum” to make the decision, compared to the intended new residence of Pennsylvania. Whether State X will or will not agree will be decided by the laws of State X, so you would need to first consult with a lawyer in State X to file any objection to State X making that decision, and you would need State X’s permission to move the case to Pennsylvania.
Under the UCCJEA, if Both Parents Move to New States, the Former State No Longer Has Jurisdiction to Decide Child Custody
But what if we both moved to Pennsylvania, and then we separated only two months later before Pennsylvania became the new home state? Do I have to file in our prior state, State X?
This answer is simpler: You do not have to file in State X. Pennsylvania would have the power to decide the case. Under this scenario, the child’s “home state” is still State X. However, unlike the above scenario, no parent remains in State X, and proper jurisdiction requires one parent to be present in the state. Therefore, State X cannot exercise jurisdiction to hear the case because no parent is present in State X, the child’s “home state”. In this scenario, because both parents and children are in Pennsylvania, there is no other state that could exercise jurisdiction, which allows Pennsylvania to do so.
Clearly jurisdiction, the power to decide a case, can be very complex and the attorneys at Cooley & Handy have a wealth of experience navigating these issues, and can help guide you through them.
By: Susan M. Gibson, Esq.
Get InformedDivorce, Custody & Family Law Blog
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