At the end of last year, my wife moved and took the kids to live in another state without telling me or asking me first.
In May of this year, I filed a divorce with the court system in the state where I live and where she used to live. It has not yet been six months since my wife and kids have been gone.
Technically, are the kids still residents of the previous state? How does this impact our divorce?
While I am not licensed to practice law in your state, I can give some general guidance on this issue.
Your question is governed by a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
The UCCJEA states that child custody determinations/litigation will occur in the child’s “home state,” which is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding (or since birth for children younger than six months).
If the child has not lived in any state for at least six months, then a court in a state that has (1) “significant connections” with the child and at least one parent and (2) “substantial evidence concerning the child’s care, protection, training and personal relationships” may assume child-custody jurisdiction. If more than one state has “significant connections” and “substantial evidence…,” the courts of those states must communicate and determine which state has the most significant connections to the child.
Please note that a court that has made a child-custody determination consistent with UCCJEA has exclusive, continuing jurisdiction over the determination until either (1) that court determines that neither the child, the child’s parents nor any person acting as a parent has a significant connection with the state that made the original order and that substantial evidence is no longer available in the state concerning the child’s care, protection, training and personal relationships, or (2) that court or a court of another state determines that the child, the child’s parents and any person acting as a parent do not reside in the state that initially made the child custody order.
Once a custody determination has been made, a court of another state does not have authority to modify the determination. The only exception would be if the state with jurisdiction determines that it does not have jurisdiction as noted above, or any state court determines that the child, parents and any acting parents do not reside in the state that has the jurisdiction.
In other words, once a state court has made a custody determination, that state keeps jurisdiction over all matters concerning that child unless:
1. A court of the state with jurisdiction determines that the child or the child and a parent do not have a significant connection with the state, AND evidence concerning the child’s custody determination is not available in the state; OR
2. A court of the state with jurisdiction, or any other state, determines that the child and both parents or acting parents do not reside in the state any longer.
Therefore, it would appear that you should consider filing for custody as soon as possible in your state, so your state will have jurisdiction over the custody matter.
Remember, I am unable to provide you with anything more than divorce tips for men, so please consult a domestic litigation attorney in your area to obtain specific advice as to the laws in your state and how they impact your potential case.