FAMILY LAW ARTICLES
Hi, I’m Ben and I’m here to talk to you about Subject Matter Jurisdiction in cases involving child custody and visitation. Now, subject matter jurisdiction in civil cases typically concerns itself with whether the case should be heard in federal court or state court and if the federal court, which federal court. Now, in child custody and visitation cases, it’s a little bit different.
See the reason it applies here is because 49 of the 50 states, not including Massachusetts, have passed what’s called the Uniform Child Custody Jurisdiction and Enforcement Act or UCCJEA. This concerns which state has jurisdiction to make child custody and visitation orders. The first thing that it concerns itself with is which state is the home state of the minor child, which is which state has the minor child been residing in for six months as its permanent residency. Now there are obvious questions to that. Say you go somewhere on vacation and decide to stay over, at what point does that clock start ticking? Or if you are say in the military and are stationed somewhere not necessarily intending for that to be your permanent place of residence. These are all nuances that are discussed in various case law in California. If there is no state in which the minor child has been residing for a period of six months as its home state, there are a few other things that the court can consider for example parental ties to a state as well as whether there’s evidence in the state to be found regarding the child’s education, care, protection, and personal relationships. So if those are satisfied it is possible that that state finds that it has home state jurisdiction over the minor child, and it can make orders regarding child custody and visitation.
Now if that state does make orders regarding child custody and visitation, it has what’s called continuing jurisdiction and that pretty much establishes that that state has jurisdiction so long as everybody lives there or until everybody moves. So even if the minor child and one of the parents move away, so long as one parent stays in that state, that state still could have home state jurisdiction or continuing jurisdiction over the child custody proceedings.
Now, there are other ways to say transfer venue or transfer jurisdiction to another state, however, it isn’t in subject matter jurisdiction or UCCJEA proceedings. Just because a state doesn’t have home state jurisdiction, it doesn’t mean that it can’t make any orders. It’s always possible for a state to have emergency jurisdiction or temporary jurisdiction. This is most common if say the minor child has been abandoned or if there is domestic violence involving the parents or the parents and the minor child. So under those circumstances the court can make temporary orders, however, those orders are temporary and only so long as to allow the parents to seek more permanent orders in a state having home state jurisdiction over the minor child. Now if there are two states both asserting jurisdiction or in which the parties assert have jurisdiction, well, then the two courts have to meet and confer regarding which state is going to have jurisdiction over child custody and visitation. It’s even possible that this goes to a hearing.
Now, I’ve personally been involved in hearings that were held simultaneously in two states, held over Zoom. It can involve four attorneys, two judges, bulk two parties, multiple witnesses in each venue. It can be a fairly complicated procedure but it is also very cool in all honesty. So I hope that I’ve been helpful, but you really should consult an attorney if you have subject matter jurisdiction questions involving which state should be hearing the child custody and visitation hearings.
So thank you very much and good luck.