Interstate child custody arises when a court is asked to decide custody of a child whose parents live in different states. Although this may sound like a straightforward situation, interstate custody disputes are among the most complex matters in family law because they involve both state and federal law.
Fortunately, Congress and the states have developed a comprehensive system that largely prevents parents from obtaining conflicting custody orders by moving from one state to another. Understanding how these laws work can help parents avoid costly mistakes and unnecessary litigation as a divorce lawyer can explain.
Why Child Custody Is Different
Child custody occupies a unique place in American law. Article IV, Section 1 of the United States Constitution contains the Full Faith and Credit Clause, which provides:
“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”
Ordinarily, courts in one state must recognize and enforce the final judgments of courts in another state.
Child custody, however, is different.
Unlike most court judgments, custody orders are never truly final. Courts retain continuing authority to modify custody whenever there has been a material change in circumstances affecting either the child or the parents. Because custody orders remain subject to modification, interstate disputes once created serious problems.
Before 1980, it was not uncommon for a parent who was dissatisfied with a custody order to take the child across state lines and ask another state’s court to issue a different custody order. The second state often refused to recognize the first state’s proceedings, resulting in competing custody orders from different courts. Parents became trapped in expensive jurisdictional battles, and children frequently became the victims of these conflicts.
The Parental Kidnaping Prevention Act
To address this growing problem, Congress enacted the Parental Kidnaping Prevention Act (PKPA), 28 U.S.C. § 1738A, in 1980. The PKPA requires every state to give full faith and credit to child custody determinations made by another state, provided that the original court exercised jurisdiction consistent with the Act. It also establishes rules governing which state has authority to make or modify custody decisions.
The cornerstone of the PKPA is the concept of the child’s “home state.”
Generally, the home state is the state where the child has lived with a parent for the six consecutive months immediately before a custody action is filed. For children younger than six months, the home state is where the child has lived since birth.
The PKPA dramatically reduced the number of competing custody orders issued by different states.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Following enactment of the PKPA, every state adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Together, the PKPA and the UCCJEA provide a nationwide framework for determining which state’s courts have authority to decide child custody.
The UCCJEA establishes rules concerning:
- which state has jurisdiction to make the initial custody determination;
- when another state may modify an existing custody order;
- when a court may exercise temporary emergency jurisdiction;
- how custody orders are enforced across state lines; and
- how judges in different states communicate and cooperate when jurisdiction is disputed.
Together, these laws have largely eliminated the “race to the courthouse” that once encouraged parents to relocate children simply to obtain a more favorable custody ruling.
Judges Can Work Together
One of the UCCJEA’s most innovative features is that it authorizes judges from different states to communicate directly with one another when jurisdiction is disputed. Rather than issuing competing custody orders, judges may confer to determine which state is the proper forum to hear the case.
Our friend Alan J. Pransky, Attorney At Law can share a great example of this:
A sixteen-year-old girl living with her mother in Michigan ran away from home and unexpectedly arrived at her father’s residence in Massachusetts. Unsure of his legal rights and responsibilities, the father sought guidance from the Massachusetts Probate and Family Court. The court instructed him to file a custody action.
Rather than acting independently, the Massachusetts judge contacted the judge handling the matter in Michigan. After discussing the circumstances, the judges agreed that the child would remain temporarily in Massachusetts while the custody issues were resolved. They further agreed that the Massachusetts court would hear the custody case. To assist the court, they arranged for a neutral investigator in Massachusetts to interview the child, the mother, and the father, and to prepare a report for the court concerning the child’s circumstances and the issues affecting custody.
Instead of competing for jurisdiction, the judges worked cooperatively to protect the child while ensuring that the custody dispute would be resolved in an orderly and thoughtful manner. It was an excellent example of the UCCJEA functioning exactly as it was intended.
Can a Parent Take a Child to Another State?
These laws do not prohibit a parent from physically taking a child across state lines.
Before any custody proceeding has been filed, a parent with lawful custodial rights may generally travel with or relocate a child without first obtaining court approval. However, that does not mean the move is free from legal consequences.
If the other parent promptly files a custody action in the child’s home state, that court may order the child’s return while determining where the child should reside. Courts frequently attempt to preserve the status quo until a full hearing can be held.
Once a custody action is pending, or after a custody order has been entered, a parent generally may not permanently relocate a child to another state without either:
- the consent of the other parent; or
- permission from the court having jurisdiction over custody.
The specific procedures vary from state to state, but unilateral relocation after litigation has begun can have serious legal consequences.
The Importance of the Home State
The child’s home state remains the most important jurisdictional concept under both the PKPA and the UCCJEA.
For example:
Suppose a child has lived in Massachusetts for three years. One parent moves with the child to New Hampshire and files a custody action there two weeks later. Although the child is physically present in New Hampshire, Massachusetts will ordinarily remain the child’s home state because that is where the child lived during the six months immediately preceding the filing. Consequently, Massachusetts, not New Hampshire, will generally have authority to decide custody.
Jurisdiction Is Different From Custody
One point often confuses parents.
The PKPA and the UCCJEA do not determine who should receive custody. Instead, they determine which state’s court has the authority to decide custody. Once jurisdiction has been established, that court applies its own state’s custody laws to determine what arrangement is in the child’s best interests.
Moving Does Not Automatically Change Jurisdiction
Many parents believe that simply moving to another state automatically gives that state’s courts authority over custody.
That is one of the most common misconceptions in family law.
Merely crossing a state line does not transfer jurisdiction. In many cases, the original state retains exclusive, continuing jurisdiction until the legal requirements for transferring jurisdiction have been satisfied.
As a result, a parent who has moved hundreds or even thousands of miles away may still be required to return to the original state to litigate custody issues.
How Courts Decide Relocation Cases
Whether a parent may permanently relocate with a child depends upon the law of the state that has jurisdiction over the custody case.
If the parents cannot agree, a judge must decide whether relocation should be permitted.
The legal standards differ somewhat among the states. Some states primarily apply the best interests of the child standard. Others have statutes creating presumptions for or against relocation. A few states, including Massachusetts in certain circumstances, apply a variation of the “real advantage” test while also considering the child’s best interests.
Although the legal standards differ, courts generally consider many of the same factors, including:
- the parent’s reason for relocating;
- the effect of the move on the child’s relationship with the other parent;
- educational opportunities;
- employment opportunities;
- the availability of extended family support;
- the child’s adjustment to school and community;
- the feasibility of maintaining meaningful parenting time; and
- the overall best interests of the child.
No single factor controls the outcome. The court’s overriding concern is always the welfare of the child.
Emergency Jurisdiction
The UCCJEA also recognizes that emergencies occur.
If a child has been abandoned or is subjected to or threatened with abuse or mistreatment, a court in another state may exercise temporary emergency jurisdiction to protect the child.
These emergency orders are intended to address immediate safety concerns. Once the emergency has passed, long-term custody issues are ordinarily decided by the state having regular jurisdiction under the UCCJEA.
Enforcement Across State Lines
The UCCJEA also makes it much easier to enforce valid custody orders throughout the United States.
If one parent refuses to return a child after parenting time or otherwise violates an existing custody order, the other parent may ask the courts of another state to recognize and enforce the original custody order.
This greatly reduces the likelihood that a parent can avoid complying with a custody order simply by crossing state lines.
Common Misconceptions
Parents frequently believe the following statements are true when they are not:
- “If I move first, the new state decides custody.”
- “Living in another state for a few weeks creates a new home state.”
- “A new state can ignore another state’s custody order.”
- “I can permanently relocate with my child without telling the other parent.”
Acting on these misconceptions can create significant legal problems.
Before You Relocate
If you are considering relocating with your child, consult an experienced family law attorney before making plans or signing a lease.
Likewise, if the other parent is planning to relocate with your child, seek legal advice immediately. Acting promptly can help preserve your rights and prevent unnecessary jurisdictional disputes.
Interstate child custody disputes are among the most challenging matters in family law because they require courts to apply both state and federal law. Fortunately, the PKPA and the UCCJEA provide a comprehensive framework for determining which state has authority to decide custody while ensuring that valid custody orders are respected throughout the United States.
Parents should remember that these laws do not determine who receives custody. Rather, they determine which court has the authority to make that decision.
Most importantly, custody jurisdiction is not determined simply by where a child happens to be living today. It is governed by carefully crafted legal rules designed to promote stability, discourage forum shopping, prevent parental child abduction, and protect children from conflicting custody orders.
When relocation becomes an issue, time is often critical. The sooner you consult an experienced family law attorney, the sooner appropriate legal action can be taken to protect your parental rights and, most importantly, your child’s future.