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Interstate Custody Disputes
When separated parents live in separate states and have a dispute about the custody of their children, there may arise a question about which state should hear the matter. If the parents disagree about which state should have jurisdiction, usually each parent wants the state they live in to be the state which exercises jurisdiction.
Does it matter? Generally, yes. Although the courts try to be impartial between citizens and out-of-state parties, the person who lives in the state which exercises jurisdiction seems to have some advantages, if even only the advantage of being closer to the court and being able to more easily produce witnesses. And sometimes a party will want a particular state's law to apply because it is felt to be more favorable to that party's objectives.
Sources of Law
There are two sources of statutory law which apply to the determination of which state should take child custody jurisdiction; the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA).
The Uniform Child Custody Jurisdiction Act (UCCJA) is a model act designed to be adopted by each state to produce a generally uniform law across the nation. All fifty states have now adopted the UCCJA, but some states have made (usually) minor changes to the UCCJA as adopted in their state. Therefore a lawyer involved in an interstate custody jurisdiction dispute will study how both states involved have adopted the UCCJA. The UCCJA is codified in Wisconsin as Chapter 822 of Wisconsin Statutes.
The Parental Kidnapping Prevention Act (PKPA) is a federal law that was passed because the UCCJA didn't always provide a clear answer as to which state should take jurisdiction because each state could interpret and apply it differently. The PKPA, as we will see, is very similar in some respects to the UCCJA, but it strengthens the preference for the "home state" to take jurisdiction, and because it is federal law, it pre-empts the UCCJA and provides a solution where the UCCJA make allow for a deadlock. The federal PKPA is found at 28 USC Sec. 1738A.
Initial Determinations Versus Modifications
Interstate custody disputes generally fall into one of two categories: initial custody determinations (e.g., a new divorce) and modifications of existing custody orders. Usually the court which issued the initial order retains jurisdiction, unless both parties have since moved to different states.
The Rules and How They Work
There are five "kinds" of jurisdiction based on five rules:
The first four kinds of jurisdiction apply to all interstate custody jurisdiction disputes; the fifth kind of jurisdiction applies only to modification of existing order situations, and refers to the continuing jurisdiction of the state which issued the order sought to be modified.
Both the PKPA and the UCCJA prefer that the "home state" assume jurisdiction. A state is a child's "home state" if either of the following is true: first, if the child is present in the state at the time of the commencement of the proceeding and had so resided in the state for at least six consecutive months; or second, if the child is not present in the state at the start of the proceedings, that state had been the child's home state within six months prior to the child's leaving the state. What the latter part of the rule means is that if a parent moves with a child to a new state, when the child had been living in the original state for at least six months, the new state does not become the home state until the child has lived in the new state for six months; the original home state remains the home state for six months after the child is moved to a different state.
Sometimes a child does not have a home state because the family has moved around too much. Then the determination of state jurisdiction may be resolved by the second kind of jurisdiction: which state has the most significant connections with the child and the family and in which there is available substantial evidence concerning the child custody dispute. When both states have significant connections with the child, but neither is a home state, an "inconvenient forum" analysis is conducted to determine which state is the more convenient forum. The courts may have to communicate directly with each other to decide the jurisdiction issue. The result is that one state declines jurisdiction so that the other may go forward with the case.
Emergency jurisdiction can occur when a child is present in a state which is neither the child's home state nor a state to which the child has significant connections, but the child has either been abandoned or needs to be protected from abuse or the danger of mistreatment. This type of jurisdiction usually occurs because the county social survives department gets involved with a family that has just moved into the state, and the parents are separated with the other parent living in a different state, or a parent has just moved into the state with the child and claims that the other parent (usually left back in the home state) is abusive to the child. Because emergency jurisdiction often interferes with home state jurisdiction, and therefore can be abused by a parent willing to make false claims about the stay-at-home parent, the courts generally treat emergency jurisdiction as temporary jurisdiction and allow the home state to assume jurisdiction if the stay-at-home parent starts a proceeding in the home state.
Jurisdiction by Default
Jurisdiction by default occurs when no other state is assuming jurisdiction and it is in the best interests of the child that a custody determination needs to be made. This might occur when the child has neither a home state nor state with significant connections, but there is no emergency. Then the state in which the child is living may assume jurisdiction by default.
Continuing jurisdiction is available to the state which issued the last custody order as long as that state continues to have a basis for jurisdiction under its own laws and either the child or one of the contestants lives in the state. If both parents and the child have moved out of the state, then a new state will assume jurisdiction based on one of the above rules.
A child custody determination made by a court of a state is consistent with the provisions of the PKPA only if - (1) such court has jurisdiction under the law of such state; and (2) one of the five jurisdictional conditions of the PKPA is met. Therefore the first step in a PKPA/UCCJA analysis is to see if the court can have jurisdictional under state law. The relevant state law is the UCCJA as adopted in that state and the case law which applies the UCCJA. The second step is to then confirm if the jurisdiction under state law is consistent with the five kinds of jurisdiction recognized by the PKPA.
Wisconsin courts have explained how to conduct UCCJA child custody jurisdiction analyses as follows:
. . . the UCCJA provides a mechanism for resolving interstate child custody disputes. The Act employs a three-step approach to identify the most appropriate forum in which to resolve child custody disputes. First, the court looks to section three of the Act [sec. 822.03, Stats.] to determine whether it has jurisdiction. If it does, it next focuses on whether another custody proceeding is pending in a court of another state which likewise has jurisdiction under the Act. Finally, if dual jurisdiction exists, the inconvenient forum issue must be addressed. In re Marriage of Davidson V. Davidson, 169 Wis.2d 546, ---; 485 N.W.2d 450, ____ (Ct. App. 1992).
The UCCJA lists five factors to be considered in deciding inconvenient forum motions. They are:
The first three factors in the inconvenient forum analysis correspond to the first two kinds of jurisdiction: home state and significant connections/substantial evidence. The last factor means the court should avoid exercising jurisdiction if doing so would countenance abuse of the law by one of the contestants.
An interstate custody jurisdiction dispute is a situation where a party may have to have counsel in both states. A person may retain an attorney in another state for the limited purpose of challenging that state's jurisdiction over the child custody issue, and that attorney would likely work in concert with the person's local attorney.
In order to file for divorce in Wisconsin, one of the spouses must have been a resident of the state for six months, and in one county for 30 days, before filing for divorce in that county.
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