Can A Country Other Than America Be My Child's "Home State?"

Decisions regarding child custody, visitation and support begins with ascertaining which court has jurisdiction to enter child custody and support orders. Typically, the initial custody determination is made by a court in your child’s “home state.” However, if your child has been absent from their home state or moved around a lot with you or your ex-spouse, then the state where your child has lived in the six months leading up to the custody petition will have jurisdiction to make this initial custody determination.

But what if your child has been living out of the country for at least six months leading up to the filing of your custody petition?

For example, let’s suppose Tom and Jane are married and have a 9-year-old son, Liam. Liam was born in The United Kingdom, but moved to Virginia with his parents when he was four years old. After living in Virginia for five years, Tom and Jane split-up and Jane moves back to The United Kingdom with Liam. Seven months later, Jane files for custody of Liam in the United Kingdom while Tom files for divorce in Virginia and also asks for custody of Liam. Which court has jurisdiction over the custody issue, the court in the United Kingdom or the court in Virginia?

Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the court in a child’s home state has jurisdiction to enter an initial custody order, unless an exception applies. These exceptions include emergency jurisdiction and inconvenient forum.

But, can another country like the United Kingdom be Liam’s home state under the UCCJEA. The answer is yes; foreign countries are considered “states” for the purposes of the UCCJEA.

Because Liam has lived with Jane in the United Kingdom for over six months prior to Tom or Jane’s filing for custody, Virginia has lost home state jurisdiction and the court in the United Kingdom has jurisdiction to enter the custody order.

As you can see, interstate and foreign custody battles are time-sensitive and can become rather complex. If you are involved in a custody dispute where you or your former spouse wants to move your child out of the country, you should contact a family law attorney right away. The qualified attorneys at the DiPietro Family Law Group have decades of experience handling all types of custody cases and other family law issues in jurisdictions across Northern Virginia, Maryland and Washington, DC.