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How is Child Custody Determined When Parents Live in Two Different States?

Posted on in Family Law

crystal lake divorce lawyerAfter a messy separation, it is not uncommon for one spouse to relocate for a fresh start in life. Moving to a different city or state, can be a much-needed change of scenery, but it can also be a catalyst for confusion if a parent takes their child to a different state. In any divorce case, parents must create a parenting plan that outlines how they will share parenting time and decision-making responsibilities. If a parent or child lives in two different states, however, confusion can come as to where the case for child custody should be filed. In these situations, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) provides rules and guidelines to follow to determine which state has jurisdiction over the case.

Determining Home State Jurisdiction

Under the UCCJEA, the child’s home state is the area with the ultimate jurisdiction. The home state is the state in which the child resides or the state in which the child resided in the six months before the custody proceedings. A parent must still reside in the state for it to be considered the child’s home state for jurisdictional purposes. The only time a state other than the child’s home state can proceed with initial custody determination is when the child has no home state or the home state declines jurisdiction. 

Determining Jurisdiction When No Home State Exists

In some cases, a state can decline jurisdiction over a case if it finds that another state would be able to better determine custody issues or if the state finds that the parent committed unjustifiable conduct, such as removing the child from his or her home state unjustly. If a child is found not to have a home state or the child’s home state declines jurisdiction, then there are three other ways to determine the jurisdiction of a case:

  • Significant Connections - If there is no home state or the home state declines jurisdiction, then the state in which the child has significant connections will have jurisdiction. This state will be the state in which the child has ties other than just their physical presence and the state in which there is enough evidence to make determinations during the case.

  • More Appropriate Forum - In some cases, both the home state and state with significant connections may both agree that there is another state that would be more fit to hear the case or a more appropriate forum. 

  • Vacuum Jurisdiction - If all three jurisdictions -- the home state, state with significant connections, and the state which would be a more appropriate forum -- decline jurisdiction, then an alternate court can take over jurisdiction for the case.

  • Temporary Emergency Jurisdiction - In some cases, a court can take temporary emergency jurisdiction if there is evidence that domestic violence or abuse has occurred.

Contact a Crystal Lake, IL Child Custody Lawyer Today

When you are going through a divorce, making a decision about child custody is something that you cannot avoid. If you are getting a divorce and live in a different state than your spouse or child, you need to speak with a skilled McHenry County child custody attorney. At Botto Gilbert Lancaster, PC, our team has the experience necessary when dealing with a custody case from two different states. To schedule a time to discuss your situation, call our office today at 815-338-3838 to schedule a free consultation.

 

Sources:

https://www.ojp.gov/pdffiles1/ojjdp/189181.pdf

https://ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2497&ChapterID=59

 

Illinois State Bar Association State Bar of Wisconsin Crystal Lake Chamber of Commerce Illinois Trial Lawyers Association McHenry County Bar Association
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