Cincinnati Family Law & Divorce Blog: Where is Custody Determined if My Child Lives In Another State?

In custody determinations, there is often a question of which state has the power to make decisions for a child, or in legal terms, “has jurisdiction”. The issue presents itself when parents live in two different states, or both parents leave the state where an original custody decision was made.

In an initial custody determination between parents the court that has jurisdiction over the child is the court in the child’s home state. Home state is defined in the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) as “the state in which the child has lived with a parent for at least six consecutive months immediately before the commencement of the child-custody proceeding.” It can also mean the state where the child lived in the 6 months prior to commencement of the action even if the child is no longer living in the state.

For example, if a mother lived with her child and the child’s father in State A for the first 2 years of the child’s life, State A would be the home state. If mother moved to State B and immediately asked a court in State B for sole custody of the child, State A would still be the “home state” of the child and would have jurisdiction.

The UCCJEA provides that jurisdiction can be achieved if a court of the home state of the child has declined to exercise jurisdiction because another state is a more appropriate forum AND (A) the child and the child’s parents, or the child and at least one parent, have a significant connection with the other state other than mere physical presence AND (B) substantial evidence is available in the other state concerning the child’s care, protection, training and personal relationships.

Once a court makes the initial child custody determination, that state has continuing, exclusive jurisdiction over the child. Therefore, no other state can exercise its jurisdiction over the child until the original state loses jurisdiction. The original state will lose jurisdiction once that court determines that neither the child, or the child and one parent, has a significant connection with the state and there is no longer substantial evidence regarding the child’s protection, care, and personal relationships. The originating state would also lose its jurisdiction once a court of any state determines that all parties (i.e. the child and the parents) have moved out of the originating state. If one parent leaves the state where the initial custody determination was made and moves to a new state, only the state that made the initial custody determination could determine that it no longer has jurisdiction. If both parents move out of the state, ANY court could determine that the initial custody state no longer has jurisdiction.

Therefore, if you plan on moving with your child out of the state that granted your divorce, you should be aware that you may have to return to that state to address any future litigation concerning your child. However, if both you and your spouse plan on moving out of state, you should try to register your decree in the new state and request that the new state take jurisdiction over the out-of-state custody determination.