Interstate Divorce & Child Custody: Where Is Your Case Heard if You and Your Ex are in Different States?

If you and the other parent are separated or never lived together, you may find yourselves living in two different states. When parents live in two different states, determining which state will hear the custody case is a significant decision. It is incredibly inconvenient to have your custody case held in a state where you do not reside, so it is important that your attorney works to ensure the case is held in your home state, if possible. 

These types of interstate custody cases are governed by the Uniform Child Custody and Jurisdiction Act (UCCJEA), a law in effect in New York and all other states except Massachusetts. This statute is all about jurisdiction, which is the legal authority of a court to hear a case. The statute created a framework that determines in which location a custody case must be heard if the parents do not live in the same state.

The Six-Month Rule

The most easily understood guideline of the UCCJEA has to do with how long a child has lived in a state. When the child has lived in one state for at least six continuous months prior to the start of any custody case or divorce case, that state is considered the child's home state and is where the custody case must be heard. 

If the child is younger than six months old at the time of the filing, the home state is the state where the child has lived for most of their life. Periods of time the child left the state to visit the other parent or to travel do not count against the six-month time period and are not deducted from it. The most important takeaway from this for parents is that if you intend to move away with your child, do it far in advance before a custody or divorce case is initiated so that you can meet the six-month period and have the case held in your new state. 

If your spouse moves away with your child to another state, you will want to file your custody case within the first six months so that the state you live in is still considered the child's home state.

Significant Connection Rule

If the child has not lived in any state for six continuous months, the decision about where the case will be heard in a state where the child and parents have significant connections. If the child and at least one parent have significant connections to a particular state, the case can be heard there, even if the child has not lived there for six months. 

The court must be presented with evidence that is substantial about the child's care, education, relationships, and protection showing the child has a true connection to that state and that it makes sense for the case to be held there. This is the situation in which your attorney can have a significant influence on the jurisdiction decision, by accumulating and offering evidence to the court that your state should be the place where the case is heard. 

If you want the case heard in the state where the child does not live, you should work hard to establish firm connections within that state to support your case.

More Appropriate Forum

If the state where the child has lived for six months and the state where the child has significant connections both refuse to take jurisdiction of the case because the courts find that another state is a more appropriate forum, that third state can take jurisdiction over the case. This is another situation in which your attorney's argument will be key in swaying the court and presenting options to consider. 

An example in which another state might be a more appropriate forum is if your 16-year-old child was born in New York and most of his family lives there, but he was sent to boarding school in Vermont beginning at age five where he attended until the other parent took him to Florida seven months ago. Florida would be the home state since the child lived there for six months. There are significant connections in New York, but if the child lived nine months of the year in Vermont and his parents mostly visited him there, Vermont might be a more appropriate forum.

No Other State

If no state meets any of the above conditions, then another state can accept jurisdiction. This again is another situation in which a legal argument will be determinative in how the court rules. Your attorney should understand the nuances of this law and can present your case effectively.

Emergency Jurisdiction

There is an exception to the rules stated above. When domestic violence is involved, any state can handle the custody case if the child is present in the state and

  1. The child has been abandoned or 
  2. The child, one of the parents, or a sibling is being abused. 

When a Court Declines Jurisdiction

Courts do not have to take jurisdiction over an interstate custody case and can turn the case away if they determine their state is an inconvenient forum. The following factors have to be considered:

  • Any occurrence of domestic violence, whether it is likely to continue, and which state can best protect everyone
  • The amount of time the child resided outside the home state
  • The distance between the state that would not take jurisdiction and the state that is considering taking jurisdiction
  • The financial situation of the parties
  • Agreements by the parties about state jurisdiction
  • Where the evidence is located and what type of evidence it is
  • The abilities of the states involved to handle the case quickly and do what needs to be done to protect the evidence
  • The familiarity of each state with the case

A state can also decline jurisdiction if it decides one of the parties has done inappropriate things to get an advantage over jurisdiction (this is referred to as misconduct). This is called the clean hands doctrine. An example of this would be if an abusive parent abducted the child from New York and disappeared to Colorado. Colorado could refuse to take jurisdiction even if the child lived there for six months because of the parent's misconduct. There is an exception for parents who are victims of domestic violence who leave to protect themselves and their child from an abuser. Removing themselves from a state in this situation is not considered misconduct, even if they abduct the child and violate an existing custody order.

What a UCCJEA Determination Means

Once a state takes jurisdiction of a custody case, it has exclusive ongoing jurisdiction as long as significant connection remains between the parents or child and that state or until none of the parties continue to live in that state. Once a custody order is in place, it's valid and enforceable in all UCCJEA states. A court in another state can modify the order in the future if the original state decides it does not have or does not want jurisdiction or either the original state or the new state determines that the parties no longer live in the issuing state. 

Interstate custody cases are complex, and the determination of where the case is heard not only impacts you in terms of inconvenience and cost, but it can present a situation where the laws that determine how the actual custody case is decided may be more favorable in one state than another. If there are two states involved in your custody case, you must have expert representation to help achieve the best possible outcome. 


Naomi Schanfield

Naomi Schanfield concentrates on all aspects of matrimonial and family law, including, prenuptial and postnuptial agreements, divorce, equitable distribution, child custody and visitation, support matters, family offense disputes, and domestic violence.

To connect with Naomi: 212.682.6222 | Online

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