While family law is normally defined by each state's law, the rules regarding child custody hearings are mostly uniform among the states. The Uniform Child Custody Jurisdiction and Enforcement Act has been approved by 49 states. The sole holdout is Massachusetts. As a result, the process for moving a custody hearing to another state by establishing jurisdiction elsewhere is generally similar from state to state -- assuming you want to move the initial custody hearing to another state and no court has made any custody determination.
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Determine which court has initial jurisdiction. A state has initial jurisdiction over a custody case if it is the child's home state when the first proceeding commenced. A state may also claim jurisdiction if it was the home state of the child within the six months immediately prior to the custody proceeding and one parent still lives in the state.
Check to make sure there are no other related custody proceedings going on in any other state. If there is another ongoing child custody hearing, no other state’s court is permitted to act.
Assess whether emergency circumstances exist. A court can obtain temporary jurisdiction over a child custody case if the child currently lives in that state. To qualify as emergency circumstances, the child must have been abandoned or in danger of being mistreated or abused. A court may also claim temporary jurisdiction if the child’s parents or siblings are threatened with mistreatment or abuse.
Review whether the current state is an inconvenient forum. Determine where the child and parents live in relationship to the state that currently has jurisdiction and check to see if any related litigation, such as a divorce proceeding, is currently taking place in the state. Consider the distance between the current state and the proposed venue and the financial circumstances of both parties. Finally, evaluate both states' familiarity with the case and its facts.
Consider whether a party used unjustifiable conduct to ensure the state currently presiding over the hearing gained jurisdiction. An example of unjustifiable conduct would be a parent abducting their child to another state and living there for a year. The abduction would generally disqualify that state from having jurisdiction, despite the fact the child lived there for a year. If the parent took the child to another state to flee an abusive parent, that would not be considered unjustifiable conduct.
File a motion with the original court to terminate its jurisdiction. For a court that currently has jurisdiction over a child custody case to surrender it, you must show in your petition that the current state is inconvenient or the current jurisdiction was obtained by unjustifiable conduct.
Secure an order from the current court that has jurisdiction stating it declines jurisdiction. Be sure to get a certified copy from the court's clerk.
Determine if the new court where you want the hearing to take place has jurisdiction to hear the custody case. To qualify as an appropriate state for jurisdiction, the child and at least one parent must have a significant connection to the state. A significant connection requires something more than the child being physically present in the state; if the child has relatives in the state and has spent prolonged periods there, the child may have a significant connection to the state. The new state must also have substantial evidence available to it regarding the child’s care, protection and training. This is important because the court deciding custody must have easy access to evidence regarding the child's upbringing to make a good decision.
File a petition with the new court to determine custody. The petition should state why the court has jurisdiction to hear the case and state the court with original jurisdiction declined to hear the case. You should also include a copy of the order from the prior court with the petition.
Tips & Warnings
- Consider hiring a family law attorney to help you with this proceeding.