Divorce FAQ's

Parents Living in Different States

1. What happens when a couple has a child and they both live in different states?

When parents who live in two different states and they want to make their custody arrangement into a formal court order, or when they need to resolve a dispute about custody or visitation parenting time, then it may be very difficult to determine which state court should handle the case. In short, the critical question is which state should have jurisdiction. The travel costs for the parties could be a critical factor.

In custody cases jurisdiction depends mostly upon the following:

a. Do any court orders already exist?

b. Where does the child presently live?

c. Where has the child lived before this time?

2. What does the term home state mean?

If no court has ever entered an order to determine custody or visitation, then the general rule is that a court in the state where the child (and one parent or caregiver) has lived for the last six months is the state court that should resolve the case. If the child is less than six months old, then the state where the child was born and has lived since birth has jurisdiction. This is called the child’s home state.

3. What state should have jurisdiction over custody and parenting issues if the child has no home state?

If the child has not lived in one state since birth or for the last six months, then he has no home state. When there is no home state, then the courts consider which state is most able to resolve the case. The courts analyze the significant connections between the child and the state. For example, the state that is home to the child’s relatives, teachers, or doctors, who may be potential witnesses if a trial is necessary, has significant connections.

When there is no home state, a state’s court can choose to assume jurisdiction if:

a. The child has previously lived in or currently lives in the state;

b. At least one parent is currently living in the state; and

c. The state has significant connections to the child.

In some cases both courts in two states may determine that their own state should take jurisdiction over the case. If this scenario occurs, then both courts are required by Federal law to communicate with each other to decide jointly on which state’s courts should resolve the issue.

4. Are there any exceptions to the above rules to determine jurisdiction?

A. Fleeing. There has always been strong concern about a parent taking a child from her home to another state without ever obtaining the consent of the non-custodial parent, or obtaining a court order. The laws on jurisdiction are called the Uniform Child Custody and Enforcement Act and the Parental Kidnapping Prevention Act. This law requires family courts to reject and/or decline jurisdiction over cases where a parent brings a child to a new state and she does not obtain the consent of the non-custodial parent or a court order to grant the removal.

Nonetheless, the family courts are permitted to accept jurisdiction if a parent flees from the home state to a new state to avoid physical abuse. However, the fleeing parent must notify either the local police or the child protection agency (in New Jersey, that is the Division of Youth and Family Services, DYFS) of the concern and the intent to flee.

B. Inconvenience. A parent can also request that the court of another state to decline jurisdiction because of significant inconvenience. When deciding this the court must consider the following factors such as:

* The distance between the states;

* The relative financial circumstances of parties;

* Any domestic violence history between the parties;

* How long the child has resided outside the state; and

* The nature and location of evidence needed.

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