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When Parental Relocation Affects Child Custody: Who Decides?

Morris County NJ Parental Moving AttorneysOur increasingly interconnected world has made relocation a reality of everyday life. We move from state to state, and even from country to country, for job opportunities, romantic relationships, lower cost of living, access to extended family: the reasons are many and varied. Any decision to relocate has significant implications for your life; however, these decisions become further complicated when you are a divorced parent. Your initial divorce decree likely outlines your child custody arrangement, as well as specifics about parenting time and visitation. When you make the decision to relocate, or your spouse decides to move out of state, questions regarding your previous child custody arrangement will undoubtedly arise, leaving you to wonder: what are my rights and who makes these determinations for my child’s future? In this article, we will discuss the major policy milestones that laid the foundation for deciding these matters, the jurisdictional rules among states, and your essential next steps as a concerned parent.

The United States first addressed issues involving interstate child custody with the Uniform Child Custody Jurisdiction Act (UCCJA) of 1968. This groundbreaking legislation was intended to serve two vital functions: to outlaw parental kidnapping (taking your child to another state to avoid court-mandated child custody determinations) and to prevent what is often referred to as “forum shopping,” which refers to the process by which a non-custodial parent attempts to have their child custody issues decided in another state to secure a more favorable outcome. The UCCJA was an attempt to create a streamlined system among states for handling interstate child custody matters and over the next 13 years, each state adopted some version of this law.

Unfortunately, in 1980, just one year before all 50 states had enacted a variant of the UCCJA, yet another piece of leglislation was passed, entitled the Parental Kidnapping Prevention Act (PKPA). Although the PKPA was intended to supplement the UCCJA by confronting additional issues that persisted after the UCCJA was created, it in fact, included significant discrepancies that gave rise to judicial questions and conflicting case law for decades to come. To reconcile these issues, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) was enacted in 1997. Currently, 49 states and the District of Columbia have adopted some form of this law, with Massachusetts representing the single outlier.

The UCCJEA outlines a variety of provisions that directly impact interstate parental relocation and child custody matters. Two of the most significant components of this legislation can be understood as follows:

Initial Child Custody Jurisdiction

Generally, the child’s “home state” is given jurisdiction to decide child custody matters. “Home state” refers to “the State in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” If the child has not reached 6 months of age, his or her “home state” is the State in which he or she has lived since birth with a parent or guardian. If for some reason “the home state of the child has declined to exercise jurisdiction on the basis that another state is a more appropriate forum.” Another state may be deemed appropriate if: 

(a) The child and the child’s parents, or the child and at least one parent (or person acting as a parent) have a significant connection with the state, other than physical presence.

(b) Substantial evidence is available in this state concerning the child’s care, protection, training and personal relationships.

Exclusive, Continuing Jurisdiction

In addition to original jurisdiction that is held by the home state, it is also provided with “exclusive, continuing jurisdiction.” Essentially, this means that future decisions regarding child custody will be decided by the state in which the original child custody determination was made. This exclusive, continuing jurisdiction is only negated when one of the following conditions are met:

(a) Neither the child, the child and a parent, nor the child and a person acting as a parent continue to have a significant connection with the original decree state and there is no longer substantial evidence concerning the child’s care, protection, training and personal relationships in that State.

(b) When the child, the child’s parents and any person acting as a parent no longer reside in the original decree state.

It is important to note that in order for a new state to acquire jurisdiction over a child custody matter, the original home state must decide to relinquish jurisdiction. The single caveat to this provision involves a situation in which neither the child or either of the child’s parents resides in the original home state.

Quite obviously, interstate child custody issues are highly complex. Despite the aforementioned legislative attempts to facilitate uniformity in deciding these matters, the case law in this area is far from consistent. When addressing such important issues for yourself and your children, it is advisable to consult with an experienced child custody attorney. The New Jersey family lawyers at Townsend, Tomaio & Newmark have assisted countless mothers and fathers with child custody matters. For additional information and a cost-free consultation, contact our Morris County offices today at 973-840-8970.