As always, before reading my post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Imagine for a moment that you are involved a nasty custody dispute with your ex. You win, the court rules completely in your favor, but before you can go get your child your ex absconds to another state. You cannot find your ex or your child until one day you get a letter from a court in the new state telling you that a custody petition has been filed there. You show up with your existing court order to retrieve your child, but the judge says "no, I think the child should be with the other parent" and enters a new custody order. What then?
For a long time, this was not an uncommon occurrence. No laws were on the books requiring states to give priority to other states' custody orders beyond some constitutional duties, and those duties could be gotten around by a crafty litigant in a wide variety of ways. Then, you ended up with conflicting orders for the same child, and police or other courts not knowing which order to enforce.
Today, fortunately, this problem rarely occurs (though it sometimes still does) thanks to a series of uniform laws that have been enacted, along with a federal law. What this also means, however, is that courts are more hesitant than they once were to enter custody orders where interstate issues might be involved, so knowing the law becomes key. In today's blog post, I'll cover the basics of when a Virginia court can and cannot make enforceable custody and visitation orders where the parents do not live in the same state.
Applicable Laws
The first law to know about is federal - the Parental Kidnapping Prevention Act (usually abbreviated as PKPA). This law is meant to clarify the full faith and credit rules from the Constitution as it applies to custody and visitation provisions. It lays out in what situations a state court must give full faith and credit to another state's custody and visitation orders, and subsequently cannot apply the state's own laws and reach a different result.
The other law to know about is the Uniform Child Custody Jurisdiction and Enforcement Act (usually abbreviated as UCCJEA). This is a law that was enacted in the early 2000's in all 50 states and is almost identical state to state (thus the "uniform" part of the law). The UCCJEA replaced the Uniform Child Custody Jurisdiction Act (UCCJA) which had been in force in almost every state since the late 1970's, but which had proven too weak in a number of challenging cases.
Virginia has, of course, adopted the UCCJEA in full, and is also under the force of the PKPA. As a result, these two laws dictate how a Virginia Court will decide the jurisdiction of a custody case.
Basic Rule for an Initial Order
So, let's start at the top. Let's say there are no existing custody or visitation orders anywhere and the parents each live in different states. In what state is the custody or visitation case to be held? Well, the PKPA only applies where there is already a court order, so the UCCJEA is the sole law to determine this. Under the UCCJEA, the basic rule is that the proper state to hear a case is the child's "home state" at the time of the commencement of the case, or if the child did not have a home state as of the commencement of the custody case, then any state which had been the child's "home state" within six months prior to the filing of the case so long as at least one parent still lives in that state (I call this the basic home state rule).
While there are a few exceptions to the basic home state rule, it is where the vast majority of cases are determined. A child's "home state" is defined as the state where the child lives, so long as the child has lived in that state for at least six consecutive months (for a child less than six months old, the home state is the state the child has lived in since birth). So, if the child lives in a state for at least six months prior to the custody case being filed, that state is where the case is to be filed. If, however, the child lives in a state for at least six months, then moves and the case is filed three months later, the case still belongs in the state where the child had previously lived as long as at least one parent still lives in that state.
This rule is expressly designed to prevent forum shopping. If a parent decides another state's custody laws are more favorable, they cannot just up and move and file a custody case there - the other parent would have six months to bring his or her own case in the previous state before the new state would be allowed to make the initial determination.
Now, of course, there are loads of exceptions to the home state rule which you can already imagine. For example, there are plenty of situations in which a child won't have a home state or a state that had been the child's home state within the previous six months. Additionally, maybe the child and his or her parents lived in Georgia for years, but when the parents broke up, the father took the child and moved to Virginia while the mother moved to Maryland - so Georgia was the home state, but no parent still lives in Georgia.
In the cases where no state has jurisdiction under the basic home state rule, or where the state having jurisdiction has decided another state would be a more "convenient" forum to hear the case, then jurisdiction is with a state where the child and at least one parent has a "significant connection" beyond merely being physically present, and a substantial amount of evidence is available in that state (I call this the significant connection rule).
If all states that would have jurisdiction under either the basic home state rule or the significant connection rule decline to hear the case because another state would be a more convenient forum, then that state has jurisdiction.
Finally, if still no state has jurisdiction under any of the above rules, then whatever state the petitioning parent chooses to file in will have jurisdiction (note that in my career to date I have never encountered a case where jurisdiction under this provision was proper).
Enforcement of the Order
Once an order is entered, as long as a state that had jurisdiction under the rules above enters it, all states must fully enforce that order unless and until it is modified. This is true regardless of whether or not the state has adopted the UCCJEA (although at this point, every state has), as the PKPA uses the same criteria as the "initial order" rules in the UCCJEA in determining if an order entered by one state must be enforced by the others. As a result, under federal law, all properly entered custody orders must be enforced by every other state.
Modification of the Order
Now, as you should know, custody and visitation is modifiable over time. So, once you have an initial order entered, what state can modify it? Well, this depends on a couple of issues.
The first question is whether or not a state has what is called "exclusive, continuing jurisdiction" over the case. A court has exclusive, continuing jurisdiction if it made the currently active custody/visitation order, and the child, either parent, or someone acting as a parent still resides in the state where that court sits. In that situation, only the state with "exclusive, continuing jurisdiction" may modify the order.
If, however, the child and all parents are no longer in that state, or if the court of that state determines it is no longer a convenient forum, then that state losing its "exclusive, continuing jurisdiction." In that case, the court that made the current order can only modify it if it would have jurisdiction to make an initial order. Similarly, a state other than the one where the current order was entered has jurisdiction to modify the order if a) that state would have jurisdiction to make an original order under the basic home state rule or the significant connection rule and b) either i) the other state determines it no longer has exclusive, continuing jurisdiction or would no longer be a convenient forum, or ii) the modifying state determines no parents or children involved still live in the other state.
Some Examples
So, all of the above is a bit of a mess. Let me break it down for you a bit better with an example.
Bob and Suzy, who have both lived in Virginia all their lives and have lots of family in Virginia, have a son named George. All three live happily together in Alabama for four years. Then Bob and Suzy have a big fight, Suzy takes George and moves to Virginia, while Bob moves to West Virginia. Both Bob and Suzy want custody of George and two months later a custody case is filed.
This case is most likely to be properly heard in Virginia. This is because, while George has no current home state and Alabama was his home state within the past six months, neither parent nor George still lives in Alabama, so the basic home state rule doesn't apply. Moreover, their significant connections (family, past history, witnesses, etc.) are all in Virginia, so the significant connections rule would seem to make Virginia the right jurisdiction.
So, we have a custody case in Virginia, Bob wins, and George goes to live with Bob in West Virginia. Suzy wants more visitation time, so two months after the Virginia Order is entered, she moves next door to Bob in West Virginia and files for a modification to get more visitation time. Where does that modification need to filed? Probably still in Virginia!
Virginia no longer has exclusive, continuing jurisdiction since Suzy and George no longer live there, so it does not automatically get to be the state that modifies the order. Nonetheless, West Virginia is not George's home state yet (he's only been there for two months), and it's doubtful that George or Bob have developed connections and evidence sufficient to meet the "significant connections" test in West Virginia either - meaning West Virginia cannot modify the order. As a result, Virginia, which does still have initial order jurisdiction due to the significant connections test, but also potentially due to the "no other state" having jurisdiction rule, would still be the state to modify.
Now, let's say Virginia enters a modified order and Suzy gets more time with George. About a year later, Bob decides he wants to move to Texas and needs the order modified so that he can bring George with him. Where does he file for that modification? Now we're in West Virginia.
At that point, West Virginia is George's home state, and as Virginia still does not have exclusive, continuing jurisdiction, so West Virginia has become the proper state for the order to be entered.
Finally, the West Virginia court allows Bob and George to move to Texas. Three years later, Suzy decides she should have custody of George and moves to modify custody. Where does she file that motion? Still in West Virginia.
This is because, while Texas is now George's home state, West Virginia still holds exclusive, continuing jurisdiction, since Suzy still resides there.
Conclusion
Confused? Don't be sad - the mishmash of interstate rules is a mess that confuses many people. By and large, they're a good mess. They fix the horrible state of things that existed before they were adopted. Nonetheless, it makes proceeding in these cases without an attorney virtually impossible. If you are involved in an interstate custody and visitation dispute, I strongly advise you to talk to an attorney. If you're interested in the services of my office, you can call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to thirty minutes!
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