Pop Quiz: Dad and Mom are never married and have two children together in the State of Oregon. The couple and their children move to Seattle for work and split up three years later. Dad moves to Arizona with the children and mom remains in Seattle. Dad wants to file for custody and support. Where should he file?
Answer: If Dad has lived in Arizona for six months with the children, he may file in Arizona. Otherwise, Washington state is the home state where the action must be filed.
In this increasingly mobile world, people do not always remain in one state. This can become very complicated in a family law case. How is a person to know where to file or enforce their family law documents? Well, if there are children involved, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) governs which state has jurisdiction and where a person must file.
The UCCJEA has been adopted in 49 states, including Oregon, Washington and Arizona. The Act sets out four basis for jurisdiction: home state, significant connection, most appropriate forum and no other state jurisdiction. The first step is to figure out which state is the child’s “home state.”
The Home State, is the state where the child has lived with a parent for six continuous months prior to the filing of an action. Short visits outside the state will not eliminate jurisdiction and, if the child is younger than six months old, wherever the child has resided since birth is the Home State.
A significant connection with a state exists if the child and at least one parent have a significant connection such as personal relationships, the child’s care, doctors, protection and training. This could happen if, for instance, a family lived in Oregon for ten years, moved to Arizona for one year, and then everyone moved back to Oregon. Arizona would be the “Home State” but, since no one lived there anymore, Oregon would be the state with the most significant connection.
The most appropriate forum will come into play if both the home state and the state with the most significant connections are not appropriate. Take the example above, but the family moved from Arizona to Washington State where they split up. Even without significant connections, Washington is the most appropriate forum, because that is where everyone is located.
In the event none of these are applicable and there is no other state jurisdiction, a person may file anywhere.
As if these rules aren’t complicated enough, a court may exercise emergency jurisdiction under the UCCJEA if the child has been abandoned or if that is necessary to protect a child, sibling or parent from abuse. This comes into play when one parent is fleeing the state from an abusive partner. In that event, even if the partner has already filed in the home state, the abused parent may be able to assert emergency jurisdiction under the UCCJEA in the state to which they have fled.
The “clean hands” doctrine allows a state to decline jurisdiction where a party may have taken a child to another state secretively, waiting the six months, and then filed the action. This doctrine is primarily to protect domestic abuse victims.
Once a state has jurisdiction over the matter, that state will continue to have exclusive, continuing jurisdiction. This means, if the parties are divorced in Oregon and mom and the kids move to Arizona for 10 years, and want to file a modification, Oregon still has jurisdiction over the action. The only exception would be if no parents lived in Oregon and the court in Oregon declined jurisdiction or determined jurisdiction was more proper in the state of Arizona. In reality, once all of the parties have moved out of the state, we go through a process of domesticating an out of state order. That means ordering certified documents from the home state, filing an Order of Domestication, and moving forward with the Petition to Modify in the new home state.
The bottom line is that jurisdictional issues can be complicated and frequently arise in our ever increasingly mobile society. In the event you have jurisdictional issues or questions, make sure to consult the UCCJEA and reach out to an attorney for additional help if needed.