When a relationship ends, it presents the opportunity to make life changes. For many, that change is a move to take a new job or be closer to family and friends. However, when kids and the courts are involved, a post-breakup move can create significant complications. When parents live in different states, and file parenting cases in different courts, it creates a dilemma as to which state can, and should, hear the case. And that question must be answered before the judge can make any actual decisions about the child. To resolve the dispute, the judges in those states are expected to communicate and agree on which state should hear the case. When facing this kind of situation, parents living in separate states need to know the court will look to rules in the Uniform Child Custody Jurisdiction and Enforcement Act to make this decision, the exceptions to that rule, and how both are considered and applied by the courts.
How Jurisdiction Works Under the UCCJEA
In order to proceed with a case, a judge must first determine whether the court has a sufficient relationship to the child to allow the court to hear the case. This is called personal jurisdiction. Generally, personal jurisdiction is determined based on where someone lives. In child custody or parenting cases, the rule is that jurisdiction is based on where the child lives or has recently lived. When a child has moved during the six months prior to filing, jurisdiction is determined by applying the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
What is the UCCJEA?
The UCCJEA is a uniform state law applied throughout the United States to deal with cases involving children that have recently moved prior to the filing of a child custody or parenting case. Under the UCCJEA, the state where the child has lived for six months is the child’s home state and has jurisdiction over the child, which means that the court will hear the parenting case. If the child has recently moved with one parent, but the other parent stayed behind, the state where the child previously lived during that six-month period is the child’s home state. The purpose of the UCCJEA is to ensure that the state where the case is heard has “significant connections” with the child. Those connections can provide the judge with information about the child’s well-being, which assists the judge in deciding how to allocate time and responsibility between the parents. The Illinois Compiled Statutes sets forth the UCCJEA at 750 ILCS 36.
Exceptions to the UCCJEA Rule
While on its face the UCCJEA appears clear cut, there are exceptions to this rule that can make it worth litigating. Under the UCCJEA, the home state can decline jurisdiction if they determine that the other court is the more appropriate forum. Under the UCCJEA, when there is a jurisdictional question or dispute, the judges are tasked with communicating with each other about the case in order to decide which state has jurisdiction over the child. This communication allows the judges to discuss the facts and review evidence about the child and parents’ connections to each state. This communication presents an opportunity to challenge the rule by presenting evidence about the child’s significant connections to the non-home state and reasons why the case should not be heard in the child’s home state.
Challenging Home State Jurisdiction
When deciding whether to challenge home state jurisdiction, it’s important to understand what kinds of challenges are likely to be successful. One reason why a home state might decline jurisdiction is that important recent events have occurred in the other state that involve the child. If the family has had significant involvement with state authorities like the courts, police, school district, child protective services, or other government agencies tasked with caring for or protecting children, those agencies can provide important evidence about the family that will likely impact the judge’s decisions.
The location of evidence, and of witnesses who might be called to testify about that evidence, is also a critical consideration to avoid excessive cost and inconvenience to the parties and their witnesses. Another reason for a home state to decline jurisdiction is if the child and parents have a significant relationship to the new state. For example, if the family recently relocated to a state where one or both parents have lived before, or have other long-term connections, the judges might decide that the new state is a more appropriate forum because of that history and those significant connections.
A Divorce Attorney Can Help You Decide When and Where to File
If you are planning to file a custody or parenting case in a state where you have lived for less than six months, it’s important to know that challenging home state jurisdiction is a separate legal battle. To avoid unnecessary legal costs and time spent, it’s critical to understand the UCCJEA home state rule and its exceptions. Talking to an experienced family law attorney about a potential challenge to jurisdiction can help you decide when and where to file and whether the facts of your case are compelling enough to warrant litigation. At Anderson & Boback, our Chicago family law attorneys have experience winning UCCJEA jurisdictional challenges and can help you decide the best way to move forward with your case. Contact us today to schedule a free consultation.