Berman & Asbel, LLP

Which court decides when divorced/separated parents in different states battle for custody?

In this age in American society, it is common for parents to be divorced or separated and in many cases, there are disputes over custody of the children.  Sometimes, a key question in the case is which court will decide the case?  To bring order across America in deciding which court should have jurisdiction of the case, there was created the Uniform Child Custody Jurisdiction Act (UCCJA).

First, what are Uniform Laws?  These are not federal laws.  Congress does not generally get involved in laws regarding marriage and domestic relations and a lot of other things.  Uniform laws are laws on a particular subject that are adopted identically by the individual states.  Generally, each state version of a uniform law is identical - that's why they are called uniform.  There is a non-governmental body called the National Conference of Commissioners on Uniform State Laws .  This body, established in 1892, is composed of lawyers who are in private practice, legislators, legislative staff and judges who draft and promote uniform statutes in subject areas where having uniform state laws is desirable.  The NCCUSL drafts such laws and then works to get them adopted in the various states.  One can see the need to have uniformity in how to decide which court should decide child custody disputes - even if the laws in the various states regarding child custody itself are different.

Getting back to child custody, the UCCJA provides a set of rules so that in any case, it should be possible to resolve which state has jurisdiction over the custody of a child.  The main deciding factor for jurisdiction is which state is a child's "home state."  As provided in the Pennsylvania version of the law: 
This Commonwealth is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this Commonwealth but a parent or person acting as a parent continues to live in this Commonwealth;

23 Pa. Cons. Stat. Ann. ยง 5421 (West)
So in most cases, if someone picks up and moves with their child to another state while the other parent remains back in the original state, the parent with the child cannot automatically file an action for custody in the new state right away.  The child must have resided in that state for six months first.  There are exceptions to this rule.  
One exception is if the court in the home state declines to exercise jurisdiction because it considers Pennsylvania to be a more convenient forum and the child and at least one parent have a significant connection Pennsylvania beyond being physically present at the time of trying to file a case and substantial evidence concerning the child's care, protection and relationships is present in Pennsylvania.

Another exception is if all courts which would otherwise have jurisdiction have declined jurisdiction because they consider Pennsylvania to be a more appropriate forum to decide the case.  Yet another exception would be if no court in any other state would have jurisdiction under the other criteria.

Also, it is not required that a child be physically present in the state for a court to exercise jurisdiction regarding that child.

In terms of the mechanics of this system, a key provision is that when a court becomes aware that another court may have been involved regarding that child or is being asked to become involved, the two (or more) courts are required to have the judges or other appropriate officials communicate directly with each other to resolve the jurisdictional issue.

Readers should not solely rely on this note but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration and Social Security.

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