In What State Should I File my Custody Case?

April 18, 2014

custody-case-state.jpgJurisdiction is a complicated issue even for experienced attorneys. It is understandable that family law litigants are often unsure regarding where to file their case especially if the parties live in separate states or cities. In addition, jurisdiction may present a problem if one party would like to modify a previous custody and visitation order and neither party lives in the state which originally issued the order. In San Diego, the family court website will direct potential litigants to the particular family courthouse where a case should be filed. San Diego family court jurisdiction is divided by zip code of the filing party. This means that the filing party only needs to enter his or her zip code and the website will direct him or her to the correct courthouse. However, these web tools do not provide guidance for parties with complicated jurisdictional questions.

In general, before a court can exercise jurisdiction over a case (hear the matter) the court must determine it has subject matter jurisdiction and personal jurisdiction over the parties. The subject matter jurisdiction requirement means that the particular court hearing the case must have the legal authority to hear that specific type of case. For example, a bankruptcy court will not entertain a divorce case and a criminal court will not make rulings in a bankruptcy case. In any custody case, family courts will have subject matter jurisdiction over the matter. Therefore, all requests for custody orders or a modification to a current order should be filed with a family court.

If the parents of a child live in separate states, the state where each parent resides will not likely have personal jurisdiction over the other parent. Personal jurisdiction requires one of the following: (1) living in the state with the intent to remain, (2) personal service while physically present in the state, (3) consent, (4) sufficient minimum contacts, (5) or pursuant to a long arm statue. Each of these methods of acquiring personal jurisdiction involves a complicated legal analysis and citation of legal authority not available to most family law litigants. Considering this requirement, it may seem impossible to get custody orders from a state if your co-parent does not live in the same state.

Fortunately, the Uniform Child Custody Jurisdiction Enforcement Act ("UCCJEA") provides clear authority for jurisdiction over custody matters. The UCCJEA states that a child's "home state" shall have exclusive and continuing jurisdiction for child custody litigation. A child's "home state" is defined as the state where the child has lived with a parent for at least six consecutive months prior to the commencement of the proceeding. If the child is younger than six months old, the "home state" is the state where the child has lived since birth. Therefore a custody case should be filed in the state where the child resides regardless if one parent lives out of state.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

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