Where Do I File for Custody?
If you and your spouse have separated and live in different states, you may each want to file for custody in your current state of residence–but you can't. Nearly every state has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Under the Act, parents can only file a custody action in a child’s home state. The “home state”—which refers to the state where the child has resided for the past 6 months—has priority over the jurisdiction of any other state. For example, if you and your child’s other parent lived in Kansas for the past 3 years, but last week you relocated to Washington with your child, Kansas is still considered the child’s home state, and a custody case must be handled there.
Sometimes parents disagree over a child’s home state and may both try to file for custody where they live. In those situations, judges from both states will consider the evidence and decide which state should handle the case. The UCCJEA prevents two states from handling the same custody case at the same time because they could end with competing or conflicting results.
Handling Custody Arrangements in Interstate Custody Cases
Distance won’t necessarily define your parenting relationship. In other words, parents that live in neighboring states can sometimes share legal custody of a child. However, it’s very rare for parents in separate states to have joint physical custody. A joint physical custody award could be appropriate for young children who aren't in school yet. Depending on your distance and relationship with the other parent, a judge may award frequent visits even though you live a state away from your child if it would serve a child’s best interests.
Typically, when parents live far away from one another, one parent will have primary custody of a child during the school year, and the other parent will receive substantial visitation in the summer. In other cases where parents live a short distance away, but across state lines, more frequent visits are warranted. For example, a judge could award you visitation with your child every other weekend and extended visits once a month if you live in a neighboring state. When judges determine custody, they must consider various factors, including your (or your ex’s) reasons for moving, the child’s ties to the community, your relationship with the child’s other parent, and ultimately what custody arrangement best meets the child’s needs.
Modifying Custody When Parents Live in Different States
Once the child’s home state issues a custody order, that state keeps jurisdiction over the case. For example, if a child lives in Texas with one parent and the other parent lives in Mississippi, only the Texas court can make changes to the custody order. If the out-of-state parent wants to modify custody (or adjust child support), he or she will have to file the action in Texas.
Keep in mind that one state’s custody order is enforceable in other states. So if one parent isn’t following the court’s order, the other parent can register the custody order and file an enforcement action in the current state of residence. Specifically, if Texas is the home state, and the other parent lives in Mississippi, the Mississippi parent can ask the court to enforce the order. Ultimately, states and parents must work together on custody issues.
Questions for Your Attorney
- My ex and I raised our children in New York but both moved out of state 3 months ago. Where can I file a custody action?
- I have primary custody of my daughter and the custody order was issued in Tennessee where I live now. I’m planning to move out of state for work, but I need to modify the custody order. Where do I file?
- I live on the east Texas border and my ex lives just 25 miles away, but in Louisiana. Can we share joint physical custody of our kids if we live in two different states?