Determining Home State

Determining Your Child’s Home State

Any child custody dispute will likely contain a myriad of legal landmines. This is especially true when your dispute crosses state lines. You could be left with 2 different courts, in 2 different states, with 2 different set of laws, having the ability to make vastly different decisions concerning the custody of your child. In order to minimize the possibility of inconsistent orders, 49 states (all but Massachusetts) have adopted the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA for short).

One of the most important provisions of the UCCJEA is the creation of the term “home state.” “Home State” refers to the state in which a child has resided for at least 6 months prior to the date of filing of any initial child custody action. Without a finding that the state is the Home State of the child, the Court will have no authority to make any custody determination (except in rare emergency situations). Further, since Ohio Courts have determined that “home state” pertains to subject matter jurisdiction (Ohio’s right to even hear the case), it cannot be waived and any party or the Court can raise it at any point during litigation.

When deciding a child’s “home state,” the Court must determine the state in which a child has lived with a parent, or a person acting as a parent, for at least six consecutive months immediately preceding the commencement of a child custody proceeding, discounting any temporary absences. If the child has not resided in his or her current state for at least 6 months, then the Court must determine if the child had a different ‘home state’ during the preceding 6 months. It is important to remember that the child can only have 1 home state, so until the child has resided in a new state for 6 months, the prior home state will remain the child’s home state.

Why is this so important? Not only will this Court make the first decision concerning your custody dispute, they will retain jurisdiction to make all future decisions concerning your parenting time. If you want to ensure your case is heard in the state of your choosing, it is imperative that you follow the provisions of the UCCJEA very closely.

First, if you have recently moved out of state or if your child has come to live with you full time, you do not want to file too early. If you file a custody action before the child has resided in your state for 6 months, your matter will likely be dismissed, and it will jump start a custody action in your child’s previous state.

Second, document whenever possible. If this is a mutual decision for the child to move out of state, you will want to have something in writing from the non-residential parent (email, text, letter, etc.) acknowledging the decision to move the child. Chances are that once the non-residential parent is served with a custody suit, they will contest the accuracy of your dates and terms of your agreement. You will also want to preserve any paperwork that can demonstrate the date of the move.

Third, quickly enroll your child in daycare and/or school upon arriving. The enrollment paperwork will be helpful in proving both the date you relocated and demonstrating that this relocation was more than a periodic visit.

Finally, it is important that you are proactive if you receive any child custody paperwork from another Court. While a Court without home state jurisdiction cannot make an initial custody determination, chances are that the Court will be unaware of the issue unless you bring it to their attention. If you are served with a foreign child custody complaint, you should immediately contact an attorney in that state in order to dispute jurisdiction.

In an interstate child custody matter, it is important that you know and understand your rights under the UCCJEA. Where your child custody matter is heard will have a significant impact on your ability to present evidence, subpoena witnesses, and even the laws that will be applied to your case. Therefore, if you are facing an interstate child custody dispute it is important to hire an experienced attorney that can protect your rights.