Can You Take Child Custody to Federal Court?

By Heather Frances J.D.

When parents divorce, typically, the court decides child custody and child support issues as part of the divorce decree. Custody issues are determined by state law in the state where the parents divorce, as long as the state has proper jurisdiction, or legal authority to hear the case, which is based on the child living in the state where the divorce takes place.

Federal Courts Have Limited Jurisdiction

Federal courts are not designed to decide child custody disputes, and few federal laws address child custody. Although many state laws address custody, including a commonly accepted jurisdiction act, parents generally cannot take their custody disputes to federal court. If a parent is not happy with the decision the state divorce court has made, his recourse is to appeal the state court's decision to a higher state court.

Indian Child Welfare Act Cases

The Indian Child Welfare Act, passed in 1978, is a federal law that governs custody and adoptions of Native American children. Parents whose children are Native American can take their custody disputes to federal court, based on provisions in this act. For example, a custody dispute that is decided one way by a tribal court and another way by a state court may be taken to federal court for a final decision.

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What Is the Difference Between Custodial Parent & Primary Physical Custody?

During your divorce, the court awards physical custody -- which determines where your child resides -- to either you, your spouse or both of you. If the court awards physical custody to only one of you, or your child lives with one parent most of the time, that parent will be known as your child's custodial parent, which also is described as having primary physical custody. The terms custodial parent and primary physical custody usually describe the same type of custody arrangement.

Custody Extradition Laws

Divorcing parents often fight over custody, and sometimes the custody disputes get so heated that one parent runs to another state with the children. While the parent who takes the children cannot necessarily be “extradited”-- because extradition refers to criminal cases -- he could be forced to return the children to their home state for custody proceedings.

Child Custody Laws Concerning Deployed Parents

In many ways, military custody cases are the same as civilian custody cases -- and both are decided by state courts. When military parents deploy or move to a new duty station, however, custody orders may need altering to match the family's new situation. Depending on state laws, special rules may apply to the deployed parent's custody arrangements.

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