Relocation throughout the United States is generally a simple process; therefore, it is not uncommon for one or both parties to move to a different state after a divorce. In such cases, parents are faced with a jurisdictional dilemma with regard to their custody and visitation issues. Frequently as children get older their needs and schedules change significantly. In some cases the parents are able to adapt to new situations and reach agreements to modify outdated custody and visitation orders. However, in more high conflict cases, court intervention is necessary – especially if the parents no longer reside in the same state.
The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) is the governing law for determining whether a court can exercise jurisdiction over a custody and visitation matter. Under the UCCJEA, a California court may not modify another state’s custody order unless (1) the California court has jurisdiction to make an initial custody determination AND either (2) the court of the other state determines that it no longer has exclusive, continuing jurisdiction OR (3) a California court or a court of the other state determines that the child, the child’s parents and any person acting as a parent do not presently reside in the other state.
California has jurisdiction to make an initial custody determination if California is the home state of the child on the date of the commencement of the proceeding. The “home state” is defined as the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. Therefore, unless California is currently the home state of the child, it will not proceed with the rest of the analysis to consider whether it can modify another state’s order.
Once California has determined it is the home state of a child, the parties must meet item two or item three discussed above. If the court that made the initial child custody determination determines that it no longer has exclusive, continuing jurisdiction because the child and one parent fail to have a significant connection with the state and substantial evidence concerning the child’s care, protection, training and personal relationships is no longer available in that state, California may modify another state’s order. In addition, if none of the parties continue to reside in the state which made the initial custody order, California may modify an out-of-state custody order as long as all of the proper procedures have been followed.
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.