Where to File When Two States Are Involved?

Sometimes a situation exists whereby parents are in different states and one or both seek to file for relief in a court regarding their children. Issues can arise as to which state should have the right to hear the case and decide issues of custody and child support. The rules behind where to file for relief can be complex, so it takes an attorney with knowledge in these areas to make the proper determination.

First, as a general rule, the custody action should be filed in the state where the child has lived with a parent for the past six months before the lawsuit was filed. This is called the child’s “home state” for filing purposes. The court can look at the total circumstances when determining this, such as how long the child lived in the state, the parents’ intent, and whether a move was voluntary.

You may ask what happens if one parent leaves the home state with the child and the other remains there. Well, if it is an initial suit regarding the child, the home state retains the right to hear the case as long as the home state was the state where the child resided within six months of the filing of the case. So, a parent who is residing in the home state who leaves with the child one day never to return will still be subject to the court’s power in the home state as long as the other parent files in the home state within six months.

There are of course occasions where the child has no home state. In this circumstance, the determination will depend on if the child has a significant connection with the state. The three requirements for a significant connection are: 1) the child must not have a home state, 2) the child and at least one parent must have a connection with the state other than physical presence, and 3) substantial evidence of the child’s care and relationships must be available in the state.

Even if a child has a home state, that state can sometimes decline to hear the case if it determines that it is more convenient for another state to hear the case. This can be for logistical reasons including the distance between the states, the location of evidence concerning the child, and the respective financial conditions of the parents. A court can also decline to hear a case if it finds that a parent engaged in unjustifiable conduct, such as taking the child from their home state to another state and then filing in that other state.

The preceding commentary is really just the tip of the iceberg when it comes to interstate child custody matters. My goal was to give you a general understanding of the law that exists when two parents claim their respective states have the right to hear their child custody case. Again, I urge you to seek the advice of an attorney if you are faced with a case involving interstate child custody concerns.

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