When a child has moved to a new state or a child's parents live in more than one state, it is important to understand where a child custody case should be filed. A child custody case must be filed in the proper place for a court to exercise jurisdiction to make important decisions. Where a custody case will be decided will depend on where a child's parents reside and where the child who is the subject of the case resides.
Uniform Child Custody Jurisdiction and Enforcement Act
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) determines which court has jurisdiction in a child custody case and what happens when a child moves to a new state. A child must reside in a state for six months for the state to become the child's home state.
In an initial child custody proceeding, the proper forum for any determinations regarding child custody is in the state where the child has resided for at least six months. In some cases, a court may be able to exercise emergency jurisdiction if a child is within the state but has not resided there for six months or longer.
Once a court has made an initial determination regarding child custody and support, that court retains jurisdiction unless the case is transferred. If another court rules that a child's home state has changed and accepts jurisdiction, the court where the case was originally decided may decline jurisdiction.
Determination of a Child's Home State
Determination of residency is a potentially complex question of fact, especially if a child has recently resided in more than one state. Courts will consider factors such as where a child attends school, where they are receiving medical care, and how long the child has resided in a particular state. Residency is based on an intent to permanently reside in an area, so visiting a particular state is not enough to establish residency.
Enforcement of Out-of-State Judgments
If a child has moved with a parent or guardian to a new state, it may be necessary to register an out-of-state judgment and request that a court in the new state exercise jurisdiction.
In cases where a parent has taken a child out of a state without requesting court permission, registering the out-of-state judgment may be necessary to request the assistance of local law enforcement. For example, if you were awarded custody in Kansas and the other parent of your child failed to return the child to your custody when it was time to do so and moved to Missouri, you may need to register the Kansas decree in Missouri where the child is located to enforce the terms of the previous order. Moving without court permission can sometimes be a serious matter in a custody case, especially when doing so violate a court's previous orders.
Leaving the State During a Pending Custody Case
If you have been served with paperwork regarding a custody case in any state, you may have been served with a court's standard orders regarding leaving the state. You must not leave the state without court permission during any custody proceeding. Doing so could adversely impact your custody case.
If you have any questions about whether or not it is legally okay to leave the state under your current circumstances, consult an attorney in your state. For example, if you have not been served with paperwork regarding a divorce or custody case but think you will be at any time, contact a lawyer about your rights in the state where you currently reside. Leaving the state before you have established residence or where you may have a pending custody or divorce case could adversely impact your rights.
In some cases, you may even be charged with parental kidnapping if you leave the state after being advised against doing so during a pending custody proceeding. This is a very serious charge that could result in federal prosecution and will most probably impact any child custody case adversely. Even if you think that moving is the best thing to do for you and your child under the circumstances, make sure to contact a lawyer before you do so. Failure to do so could be disastrous if you move during a pending custody case.
Child Custody in Missouri
In Missouri, the law favors a court determination that is based on the best interests of the child--this is the same as any other court. In some states, joint custody is favored over one parent having primary custody and the other having visitation.
In Missouri, courts will not disfavor joint custody which includes approximately equal parenting time and shared decision making or joint legal custody regarding education, medical treatment, and other decisions simply because one parent is against joint custody. However, a court may consider the parents' ability to get along in the past and regarding joint decisions in the present as one of many factors when making a decision regarding child custody.
Child Custody in Kansas
Child custody in Kansas is based on the best interests of the child, just like it is in other states. Joint legal and physical custody is favored unless it is in the best interests of only a minor child for only one parent to be awarded primary custody.
If one parent is awarded primary custody, the other will be awarded visitation. Usually, this will be unsupervised unless a court finds that unsupervised visitation is not in a child's best interests. A parent who wants to request sole custody or supervised visitation should be prepared to prove facts to demonstrate that this is in a child's best interests.
Child Custody in Illinois
Illinois courts consider a number of factors when making a determination regarding whether or not to award joint custody or to award one parent primary custody and grant the other visitation. However, these terms are no longer used by courts quoting recent legislation.
The Illinois Marriage and Dissolution Act of 2016 removed the terms "custody" and "visitation" and replaced these terms with "allocation of parenting time and responsibility." Parents in Illinois are encouraged to consider what is best for their children rather than thinking of a case in terms of winning or losing.
Court Determination Factors
Courts in every state must consider the "best interests of a child" when making determinations regarding visitation and child custody. This is a phrase that you are likely to hear repeatedly no matter where you are facing a child custody case, even if your case is being presented to a judge for the first time or you are going before a judge to request a review of a prior court's decision.
When a child has not been a resident of a state for at least six months where a parent is petitioning for child custody, a court will be faced with deciding whether or not a determination regarding child custody is properly in that court. The court will base that decision on factors such as where both parents have been residing, the child's connections to the state, and the best interests of the child. In some rare circumstances, a court may decide to exercise emergency temporary jurisdiction. This is especially true when it is not clear where a child resides for purposes of determining jurisdiction and a determination must be made regarding child custody to protect a child's welfare and safety.
Changing State Jurisdictions
State laws regarding child custody and those enumerated in the UCCJEA are intended to protect the best interests of a child first and first and foremost. They are also intended to prevent plaintiffs from "forum shopping" or moving to a state that favors decisions that will help them obtain a favorable outcome that would have been different in another state.
If you have moved to another state and want a court to hear your case there, it is best to gather all the evidence that you can regarding your residency and your child's residency in that state. For example, you may wish to make copies of the following documents:
- Your state-issued identification and voting records
- Your children's identification records, including Social Security cards, birth certificates, and state-issued IDs
- Children's school records and medical records
- Vaccination records
- Bills reflecting your residency within the state
- Lease agreements and mortgage paperwork
- Property tax records
- Any other documentation regarding your residency and your child's residency in a particular state
Once a court has made an initial custody determination, you should contact the court that made the initial decision regarding any changes in your situation before petitioning any other state for a change in your custody situation. If you were not allowed court permission to relocate initially, you will need to ensure that you have court approval before moving.
If you have already moved without court permission after obtaining an initial custody determination or divorce decree, you may be able to request a change in custody from another state court. However, this is usually not the best way to go about changing custody.
All courts in the United States recognize other state's orders regarding child custody and child support. Even if the laws of a state where you currently reside differ from those where you were previously awarded visitation or custody, the previous order from another state court may be enforced in your current state.
Consult an Experienced Missouri Family Law Attorney
Do you need legal advice about where to file a child custody case or about enforcing an out-of-state divorce decree or others order regarding custody? The Joshua Wilson Law Firm is here to help. Contact us by calling (816) 331-9968 or fill out our online form.