As a Family Law attorney in Rhode Island, I am accustomed to legal cases where two parents are fighting over children. Occasionally, a grandparent will even be thrown in to the fray just off the top rope, just for fun. To spice things up.
But, what you may not know is that sometimes it is not just parents who are fighting over a child; sometimes states are fighting over a child too.
States don’t really fight. But they may come into direct conflict with one another.
When two parents living in two different states are both running to the courthouse near them set to file a case over that same child it can get confusing as to which state should accept the case and which should defer. You can imagine the chaos that would ensue if two states issued two contrary Orders as to one child.
These decisions are no longer left to the states. Instead, there is a single guiding federal statute to which (almost) all states consent. The federal statute is called the U.C.C.J.E.A., or Uniform Child Custody Jurisdiction & Enforcement Act. The U.C.C.J.E.A. has helped countless attorneys and judges guide confused and anxious parents to the correct jurisdiction, but to a non-attorney it can be a little confusing. Because it is confusing I will not bother to copy / paste the actual language here; if you like you can Google it anywhere. Instead, I would like to help you apply what it says. As is often the case with complicated statutory law, it is best explained through example.
The Christopher Example:
Four-year-old Christopher Robin has lived in Fall River, M.A. for the past seven (7) months. His mother, Robin Robin, moved to Fall River from Smithfield, R.I. after living with Christopher’s Father (Red Robin) for the past five (5) years. When the parties split neither of them went to Court to get an Order to determine which parent will live with the child, when the other parent will visit, and whether they will share custody. Because they trusted one another.
As there are no Court Orders regarding this child anywhere, and because the child has lived in M.A. for the past seven consecutive months, the Commonwealth of Massachusetts should have the first bite at the apple as to jurisdiction. When either parent goes to file the case, either Mother or Father should file this case should in M.A.
Generally, you can find the appropriate jurisdiction by determining the last state where the child has lived for the past six consecutive months. Simply start where the child is now and track backwards.
Above, even though Christopher had lived in Smithfield, R.I. his entire life and has only been in Fall River, M.A. recently, because he has lived in M.A. for the past six (or more) consecutive months, and because there are no Orders from the Family Court in R.I., M.A. becomes the home state of this child. This is true even though Christopher Robin has been visiting his dad in R.I. throughout, because (and only if) he has lived primarily with his mother during that time.
Now, let’s take our above example with the Robins and tweak it a little bit. Let’s say, this time, that the parties lived together in Smithfield, R.I. for the child’s first five (5) years before breaking up, and then Mother Robin Robin moved to Seekonk, M.A. Two months after moving to M.A., Father Red Robin files a case in the R.I. Family Court to adjudicate Christopher’s placement, visitation, custody, child support, whatever. Because Father was more proactive in this example and filed two months after the break-up and removal to M.A., then R.I. is the most recent state where the child has lived for the at least six (6) consecutive months, and so R.I. is the home state of this child.
Another tweak to our Christopher example: Mother, Father, and Christopher all live in Smithfield until the child is one (1) year old and the parents separate. Mother moves to Warwick, R.I., Father stays in Smithfield, R.I. Mother files an action in R.I. involving the child and a judge enters an Order as to that child. That case closes. Thereafter, Father remains in Smithfield, R.I. but Mother moves to Seekonk, M.A. where she and the child live for several years (it doesn’t matter how many really). Mother then files in M.A. if she has any legal concerns or modifications involving the child, because he has been there for more than six (6) consecutive months, right? Not necessarily! In this example, because the Family Court in Rhode Island had already entered a Court Order involving Christopher, and because one of the parents (Red Robin here) is still residing in the State of Rhode Island, then Rhode Island was the original home state and may well have continuing jurisdiction because Father still lives there, even though Mother and Christopher have moved to Massachusetts. In this example, if Mother filed in M.A. but Father filed in R.I. those two judges will confer and determine which venue is more convenient. For example, if the police or child services in one state were involved, or the judge will need the child’s counselor’s notes and the counselor is in M.A. then one state may be deemed the better fit for the case moving forward.
One final tweak. The Robin family separates when Christopher is one. They have lived in Smithfield, R.I. for the past year. Mother takes Christopher to Newton, M.A. where she moves in with her parents, Robin Roberts & Robin Williams. She contacts the Smithfield police and alleges that Father hit her, or Christopher, and the police or DCYF is investigating. In this example, even though it contrasts everything we have learned above (sigh), Mother can actually file in M.A. despite having only just moved there and not having earned the requisite six (6) consecutive months of residency, because there is an emergency in this situation. Mother is not expected to travel back to Smithfield, R.I. to file. Mother can file, on emergency jurisdiction only, in M.A.
Note, however, that the case can only remain in M.A. in this example for as long as needed in order to keep the child safe! Depending on the basis of the emergency, this may not be very long at all! Mother can file in M.A. and get an Order that, say, Father is not to visit the child unsupervised until the police investigation is over. If the police finish their investigation five days later, and there are no criminal charges, the emergency ends and jurisdiction reverts back to R.I.! If you file based solely on emergency jurisdiction, jurisdiction evaporates when the exigency ends.
See? Now you are an expert. And you didn’t have to read any boring laws.