Child Custody in Cases of Interstate Divorce

Child Custody in Cases of Interstate Divorce

| Aug 24, 2018 | Child Custody

Child custody cases can be complicated, confusing, and highly stressful to everyone involved, especially the child in question. Older children may have a say in which parent they live with, but that can further add to their stress as they have to choose one parent over another. The confusion and stress can escalate, especially when the parents reside in different states and apply for custody. What are the rules for interstate child custody cases in California?

Interstate child custody cases – What are the rules?

All the states within the United States follow some form of the Uniform Child Custody Jurisdiction Act (UCCJA). Although there may be slight variations in specific rules, the general guidelines for jurisdiction remain relatively uniform throughout the country. California also has its own version of the UCCJA, and has jurisdiction over child custody cases as long as there are no prior orders regarding custody of the child in question.

There are a few basic factors that the Court must consider before taking over the jurisdiction of a child custody case in California:

  • The child must have lived in California for at least six months prior to the custody case being filed for California to have jurisdiction over the custody.
  • One of the parents of the child whose custody rights are being discussed has been residing and continues to reside in California.
  • There are no prior agreements or Orders concerning custody of the child in question before the case being considered in California.

If a parent files for full custody of a child who has been living in California for over six months, or whose other parent or guardian is in California, the case might be moved to a California court. This is especially true if the parent has wrongfully retained the child and has taken the child to a different jurisdiction but is unable to prove residence or jurisdiction in the other state. Such cases would also be covered by the Kidnapping Prevention Act of 1980 (PKPA) concerning wrongful detainment of a child by a parent or guardian who does not have custody, and strengthen the jurisdictional rights of California courts.

When a parent residing in California does not have custody and files for custody of a child residing in another state with the other parent or guardian, a California court may have jurisdiction of the case if the parent who has the child is abusive to the child or has a drug or alcohol problem.

If a court of another state has passed orders concerning the custody of the child in question, and if the case comes up in a California court, the judge presiding over such a case is legally bound by the UCCJA to look at prior orders and check for out-of-state custody jurisdiction before taking up the case or passing orders. In some cases, the California court may simply enforce the orders passed by a court in a different state if the parents or guardians are found to be not following those orders.

Parents must also be careful where they file for custody if they live in different counties within California. The custody case must ideally be filed in the county where the child has been residing for the major part of six months prior to the filing of the custody case.

Understand that each child custody case is unique in the way the different parties involved work with each other and the circumstances surrounding each case. Because of such variations, there is no single resolution given in the UCCJA or any other guidelines concerning child custody in California, and decisions are made on a case-by-case basis.

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