Interstate Child Custody Is Complex. But It’s Also Solvable

When a parent lives in a different state from the one in which the other parent and the child live, more than one state may have the power to decide a custody dispute between them. If more than one state does exercise its power, the competing decisions confuse rather than resolve the dispute. Custody disputes, in particular, are susceptible to competing decisions because they are modifiable until the child reaches the age of majority.

When there is a dispute regarding the state where a custody matter should proceed, the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") provides the answer. Under the UCCJEA, there are four bases for a California court to take jurisdiction (i.e., the power to decide) over a child custody dispute: (1) California is the child's home state; (2) no other state is exercising jurisdiction and California has a significant connection with and substantial evidence concerning the child; (3) all courts of other states have deferred to California; or (4) no other state has jurisdiction.

1. Home State

Under the UCCJEA, California may assume jurisdiction if it is the child's home state at the time the action is filed. A child's home state is the state in which the child has lived with a parent (or a person acting as a parent) for at least the six months immediately before the action is filed. California may also assume jurisdiction if California had been the child's home state within six months before the action is filed, the child is absent from California, and a parent (or a person acting as a parent) continues to live in California.

2. No Other State Exercising Jurisdiction; California Has Significant Connection and Substantial Evidence

California may assume jurisdiction if no other state is the child's home state or a court of the home state has declined to exercise jurisdiction on the ground that California is the more convenient forum (i.e., location) and both of the following: (1) the child and at least one parent (or person acting as a parent) have a significant connection with California other than mere physical presence; and, (2) substantial evidence is available in California concerning the child's care, protection, training, and personal relationships.

3. All Other States with Jurisdiction Have Deferred to California

California may assume jurisdiction if all other courts having jurisdiction have declined to exercise jurisdiction on the ground that California is the more appropriate forum to determine the child's custody.

4. Jurisdiction in No Other State

California may assume jurisdiction if no court of any other state would have jurisdiction.

The UCCJEA also allows a California court to make custody orders in an emergency. In general, a California court can exercise temporary emergency jurisdiction over custody issues if the child is present in California and it is necessary to make custody orders to protect the child because the child, or the child's sibling or parent, is subjected to or threatened with mistreatment or abuse.

It is important to note that, even when a California court can exercise jurisdiction over an interstate custody dispute, it may decline to do so. Specifically, California may not exercise its jurisdiction if, at a time the action was filed, a custody proceeding was pending in another state exercising jurisdiction substantially in compliance with the UCCJEA. In addition, California may decline to exercise its jurisdiction if it determines that it is an inconvenient forum under the circumstances and that another state is more appropriate forum. Further, if a California court has jurisdiction because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court must decline to exercise its jurisdiction unless one of the following: (1) the parents (and all persons acting as parents) have consented in the exercise of jurisdiction; (2) a court of the state otherwise having jurisdiction determines that California is a more appropriate forum; or, (3) no court of any other state would have jurisdiction.