Who Decides Interstate Custody Disputes

We live in an increasingly more and more mobile society and a society with a divorce rate that exceeds 50%. As a result, there are more and more custody disputes, and they have more frequently become interstate custody disputes.

The first issue that must be decided in an interstate custody dispute is, "what state has the right to address and decide this custody matter?". A court cannot decide a case unless it has "jurisdiction" over that case. Jurisdiction is the right or power to decide a particular type of case. The rules addressing these interstate custody disputes can be complicated, and what might appear to be a common sense belief on where a case should be decided is not always helpful.

For a court to address a custody dispute, the child or children must reside in that state for six months. That state then is considered the child or children's "home state". Only a home state can issue a custody order. The purpose of this law is to prevent a parent from fleeing one state and getting a custody order from the court of another state that has no real connection with the children or parents. Interstate custody disputes can result from a parent fleeing one state to get a legal advantage in another state. So, the "home state" rule prevents one parent from in effect kidnapping the children to obtain an advantage.

Consider the effect of this rule in the case of "Rob", who had lived in the same state for most of his life. Rob got married to a woman who lived in a neighboring state. Rob's wife had been a resident of her state for most of her life, but she moved to Rob's state after the wedding. The parties then separated and the wife went back to her state. The parties then reconciled, but moved to another state. While in that third state, they had a child. The parties remained in the third state for more than six months. They then moved back to the state where the husband had lived most of his life. Two months later, Rob and his wife experienced further marital difficulties and Rob went to the local family court to seek an order of custody.

The local Family Court would not allow Rob to file an application for custody. Why - because the state where the parties had resided with their child for more than six months was the only state that really had jurisdiction over custody. Until Rob and his wife had been in their current state for at least six months, the current state could not decide custody unless that other state agreed to relinquish jurisdiction.

The result in Rob's case was that the court considered that there was "interstate custody dispute", even though Rob and his wife both lived in the same state, simply because they had spent more than six months in a third state.

There are different options for dealing with this sort of situation. First, a court can rule in an interstate custody dispute when there is an emergency. It is, however, very difficult to meet the criteria for presenting an "emergency" situation to the court.

The other options include waiting a full six months before filing for custody in the current state or going to the prior state, filing for custody and asking the court there to send the case on to the state where the parties currently reside. Both options will result in a custody proceeding being handled in the court in the state where the parties currently reside.

Attorney Jean Mahserjian is the author of numerous websites and books devoted to helping consumers through the process of separation and divorce. To download free excerpts from her divorce law books, visit: Divorce and Child Custody