If your ex-spouse moves to another state or even another country and takes your child, which court will determine the custody of your child? It can raise difficult legal questions regarding which state (or country) has jurisdiction to make the original custody determination or to modify it.
In this two-part post, we will discuss how an Illinois law called the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) applies in these situations.
What is the UCCJEA?
The UCCJEA is a uniform law that applies in Illinois and 48 other states. It spells out the guidelines for determining which courts have the power to rule in child custody and placement cases.
The UCCJEA was approved in 1997 by the National Conference of Commissioners on Uniform State Laws to replace a previous law, the Uniform Child Custody Jurisdictional Act. Its provisions coincide with the federal Parental Kidnapping Prevention Act.
Which courts are given preference?
The UCCJEA grants priority to the home state, which it defines as the state in which the child lived with a parent for at least six consecutive months. If your child’s other parent takes your child to another state or country before either of you have filed for custody, you may file for custody in your state within six months of the move. If, upon moving, the other parent files for custody in their new state (or country), you can seek dismissal of the proceeding in that state based on lack of jurisdiction.
If your child is less than 6 months old, the home state is considered the state where the child was born and raised from birth. There are also considerations for situations where a child’s home state cannot be determined by this rule, perhaps due to frequent moves, or the home state declines jurisdiction. Determining jurisdiction then follows these rules:
- Significant connection: A state court may have jurisdiction if there is sufficient evidence the child and one parent have significant ties to the state. This could include having lived there for a long period previously or grandparents who live in the state.
- More appropriate forum: If the home state and significant connection bases aren’t met, a state can be given jurisdiction on the grounds that the other state is an inconvenient forum based on factors like the location of evidence and witnesses and the court’s familiarity with the case. A state may be given jurisdiction as a more appropriate forum based on unjustifiable conduct, including cases where the other parent moved your child to another state without notifying you.
- Vacuum jurisdiction: If none of the previous bases apply, an alternate court may fill the resulting “vacuum.” This might be the case for homeless children or children of migrant workers or military personnel.
- Temporary emergency jurisdiction: If a child has been abandoned or needs emergency protection from mistreatment or abuse, this may be enacted to make a temporary custody order, even if a proceeding has started in another state.
Jurisdiction rules related to modifications
When a child custody order is already in place and needs modification, the UCCJEA is used to determine jurisdiction should the child and one or both parents move, and the request for modification is filed in another state.
The state where the first custody order was filed is said to have “exclusive, continuing jurisdiction” for any modifications, and only it can decline jurisdiction, perhaps on the ground that is in an inconvenient forum, or determine that it no longer has jurisdiction due to significant connection. The state can also lose jurisdiction if you, your child, your child’s other parent, and any person acting as your child’s parent no longer live in the state.
Temporary emergency jurisdiction also can be used when there is an existing child custody order in another state.
Applying the UCCJEA to cases
The custody and jurisdiction issues raised interstate or international moves are often of such complexity that it is especially important to enlist an attorney with experience handling cases on appeal. In part two of this post, we will discuss a case our law firm handled raising international child custody issues. We will discuss how the UCCJEA applied when divorced parents and their son relocated from the Chicago area to India.
