Exclusive, Continuing Jurisdiction and Child Custody Orders

In my latest blog post, I discussed that a child’s home state is the only jurisdiction empowered to enter an initial custody/visitation order under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).  I also commented on the highly transient nature of the population in Northern Virginia and Washington, D.C. – given the plethora of government and military jobs available in the area. It comes as no surprise, then, that there are numerous parents who are under specific custody orders with regard to their children that have been issued outside of Washington, D.C. or Virginia. Often times, these parents want to modify their custody arrangements.

continuing jurisdiction

In Virginia, child custody orders are modifiable where there has been (a) a material and substantial change in circumstances and (b) the child or children’s best interests are served by a custody modification.

Under the UCCJEA, a state has initial jurisdiction to enter a custody order on any one of the following four grounds:

  1. It is the child’s “home state” (state where the child lived with a parent for at least six consecutive months immediately before the commencement of the custody proceeding);
  2. The child has a “significant connection” to that state and there is “substantial evidence” relevant to child custody in that state;
  3. It is an emergency situation, such as where the child is present in the state and has been abandoned or faces abuse or neglect; or
  4. No other state would have jurisdiction to decide custody.

Exclusive, Continuing Jurisdiction

Under the UCCJEA, once a state with initial jurisdiction enters a custody order, that state will have “exclusive, continuing jurisdiction” to modify the order, except in certain circumstances. No other state will have jurisdiction to modify the initial custody order so long as that original state maintains continuing, exclusive jurisdiction.

This typical becomes an issue when a child moves with their custodial parent to a new state and the non-custodial parent remains in the state with continuing, exclusive jurisdiction. In such a case, a court in the child’s new home state cannot modify the original custody order unless and until (a) the original state no longer has exclusive, continuing jurisdiction or (b) the original state declines to exercise its jurisdiction on the ground that it is an “inconvenient forum” and the new state is better equipped to decide the custody modification issues.

So, When Does A State Lose Continuing, Exclusive Jurisdiction?

According to the UCCJEA, the state that issued the initial custody order will only lose its exclusive, continuing jurisdiction to modify that order if: (1) that state loses “significant connection” jurisdiction or (2) the child, the child’s parents, and any person acting as the child’s parent no longer live in the state that issued the order.

Only the state that issued the initial order can determine that it no longer has “significant connection” jurisdiction. And the only time the “significant connection” jurisdiction inquiry is made is when the child has no home state (i.e. a state he or she has lived for the past six months).

While only the issuing state can determine if it has lost significant connection jurisdiction, any state can determine that the child, child’s parents, or any person acting as the child’s parents no longer lives in the state that issued the original custody order. If such a determination is made, then the court can decide to modify the custody order if it finds the case has been filed in the appropriate forum (i.e. the child’s new home state, etc.).

While it may seem relatively easy to decide whether a child or the child’s parents have moved out of the home state, where an individual lives is frequently a subject of debate, especially in cases involving active duty service members of the American armed forces.

If you are part of a custody modification suit involving a custody order from another state, or you or an ex-spouse are seeking to relocate, it is important that you consult a knowledgeable family law attorney as soon as possible. Failure to address modification jurisdiction under the UCCJEA can result in your case being heard in the wrong state, an invalid custody order being entered, or significant delays and venue changes.

The experienced family law attorneys at DiPietro Family Law Group represent parties in custody and visitation cases across Northern Virginia and Washington, D.C.  Contact us to schedule a consultation today at (703) 370 – 5555 or visit our website.

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