Determining Child Custody Jurisdiction
In my recent blog posts, we’ve been discussing the process of obtaining and modifying a child custody order. One of the key questions revolves around which court has jurisdiction to enter custody orders. Typically, the court in your child’s “home state” has the authority to make an initial custody determination.
If your child has been absent from their home state or moved frequently with you or your ex-spouse, the state where your child has lived in the six months leading up to the custody petition will have jurisdiction over the custody case.
What if My Child Has Been Living Abroad?
But what happens if your child has been living in another country for at least six months before the custody petition is filed? Let’s take a hypothetical example:
Hypothetical Scenario
John and Jane are married and have a 9-year-old son, Jack. Jack was born in Canada but moved to Virginia with his parents when he was four years old. After living in Virginia for five years, John and Jane split up, and Jane moves back to Canada with Jack. Seven months later, Jane files for custody in Canada, while John files for divorce and custody in Virginia. Which court has jurisdiction over the custody issue: Canada or Virginia?
The UCCJEA and International Jurisdiction
Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the court in a child’s home state has jurisdiction to enter the initial custody order, unless an exception applies. These exceptions can include emergency jurisdiction or an inconvenient forum, as discussed in previous posts.
Can a Foreign Country Be Considered a Home State?
Yes, under the UCCJEA, foreign countries are treated as “states” for the purposes of determining home state jurisdiction. In this scenario, since Jack has lived with Jane in Canada for over six months prior to the filing for custody, Virginia loses its jurisdiction. The court in Canada would have jurisdiction to enter the custody order.
Conclusion
As you can see, interstate and international custody disputes are time-sensitive and can become complex quickly. If you or your former spouse are involved in a custody dispute involving a move out of the country, it’s critical to seek legal counsel. The qualified attorneys at DiPietro Law Group have extensive experience handling complex family law cases. Contact one of our attorneys today at (888) 530-4374 to schedule a consultation.