Removing One Headache from Interstate Divorces: Custody Rights

Custody Rights in Interstate Divorce

Going through a divorce when children are involved is difficult enough on both the parents and the kids. But when the parents end up living in different states, it can seem overwhelmingly complicated to agree on a key issue such as child visitation and custody rights. As an interstate family law attorney in Minnesota, I see this problem arise frequently because companies often transfer one parent from Minneapolis to, say, Los Angeles or Charlotte.

Fortunately, there is a law adopted by all 50 states: Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA for short. UCCJEA governs important things such as defining the legal residency of the children and operates under two important principles:

1. It establishes jurisdiction over custody in the minor child’s “home state,” or where the minor child resides, and
2. A custody order issued in one state cannot be modified by a court in another state, as long as the original state maintains jurisdiction over the case.

I summarize the UCCJEA in about a one-minute video.

While there are a tiny number of unique exceptions to the authority of UCCJEA, the value of the law is pretty obvious. If a non-custodial parent cannot take a child to another state and ask a court for a favorable custody order, there is no incentive to flee to with the child simply to get an arrangement that the parent thinks might be a better deal for them.

Mobility

The UCCJEA is needed because Americans are mobile. It’s increasingly common for a parent to live in a different state from where the other parent and children live. It’s clear that allowing more than one state to exercise its authority over children could create chaos and confusion rather than resolve serious legal questions.

Moreover, because a parent’s situation can change, child custody orders may be modified. This mandates that a court reconsider its original order. The UCCJEA provides uniformity in how – and by which court – any reconsideration can be considered, which is comforting to both parents and interstate divorce attorneys. It not only provides clarity relating to jurisdiction over custody, but it reduces the risk of parental kidnapping for the purpose of forum shopping.

Exceptions

The well-being of children is an overriding public policy concern in every state. One of the few exceptions to UCCJEA’s authority is if there is evidence that a child has been abandoned or is being abused or otherwise mistreated. If that’s the case, then the state where the child is currently residing can take jurisdiction even if the original order was issued in another state.

But except in these limited circumstances, the law is clear about granting jurisdiction to the original state that issued an order. When it has been challenged, higher courts have consistently found that UCCJEA is enforceable under Article IV of the U.S. Constitution, specifically the “full faith and credit” clause in Section 1.

Enforcing Orders

As an interstate divorce attorney, I know that enforcing custody and visitation decrees across state lines can be frustrating for some parents. But when it arises as an issue, an order in a Minnesota decree will be enforced by all of the other 49 states.

Although moving an enforcement order through a Minnesota court may seem slow-moving, there are some options that resemble how a judgment in civil matters are enforced. The basic way is to register the Minnesota order in the other state. If it’s not contested, it can be enforced by a local sheriff or police department. If the custodial parent does not comply, a warrant for their arrest can be issued. Usually this means that the court can require them to appear at an immediate hearing.

If the child is in danger or there is credible reason to believe that he or she may be moved to another state, as an interstate family law attorney I can petition the court on your behalf for an emergency order preventing the child from being removed from Minnesota.

Best Case

Fortunately, few divorced parents have to endure the pain of fighting across state lines to have access to their children. But it’s good to know that the law is there to protect a parent if the best-case scenario becomes a nightmare of a worst case.