Interstate Custody

It’s become more common for child custody cases such as modifications and enforcements to involve parties with children who live in different states. Similarly, parties who live in a particular state, such as Texas, often have orders involving custody and child support that are from another state.

Because family law issues are matters of state law, varying by state, uniform laws have been enacted throughout the country so that these conflicts can be addressed in the same, or at least similar, ways across the United States. Two important acts have been promulgated and enacted in almost all 50 states, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the Uniform Interstate Family Support Act (UIFSA).

UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

The Uniform Child Custody Jurisdiction and Enforcement Act addresses issues related to interstate custody and visitation orders as well as issues related to parties and children who live in different states.

In most cases, a Texas court has jurisdiction to make an initial child custody determination only if it’s the home state of the child or if it was the home state of the child within the six-month period preceding the commencement of the suit. The home state of the child is considered the state where the child has lived for six months. If the child is less than six months old, then it’s the state where the child has lived since birth. That doesn’t mean he or she had to stay in that state for the entire six-month period of time. A temporary absence will count in calculating the six months. The UCCJEA provides three other situations where a Texas court (or a court of another state that has adopted the UCCJEA) could have jurisdiction in an initial child custody determination when Texas is not the home state:

  1. If a court of another state doesn’t have jurisdiction under the above “home state” provision, or a court of the home state declines jurisdiction on the grounds that Texas is the more appropriate state, then Texas might have jurisdiction. A court of any state will consider a number of factors in determining whether it is an inconvenient forum, including whether domestic violence has occurred or is likely to occur in the future and which state would best protect the parties, the relative financial circumstances of the parties, any agreement of the parties as to jurisdiction, the nature and location of the evidence related to the case, the ability of each of the states to expeditiously decide the issues in the case, and how familiar each court is with the facts in the case.
  2. All courts that would have jurisdiction to hear the case have declined to exercise that jurisdiction because Texas is the more appropriate location.
  3. No court of any other state would have jurisdiction based on any of the above.

The court issuing the original order retains continuing, exclusive jurisdiction as to all other custody and visitation proceedings regarding that child until one of two events occur:

  1. The child doesn’t have significant contacts in the original state anymore and there isn’t substantial evidence available there.
  1. The court of the state where the case is filed makes a determination that neither the child nor any of the conservators live in that state anymore.

A Texas court does have the ability to take temporary emergency jurisdiction in some limited situations. If a child is in Texas and has been abandoned, or if that child, a sibling, or parent of that child is subjected to mistreatment, a Texas court can enter an emergency order for a limited time to protect the child.

If you want to modify an order in Texas which was first granted in another state, you must first show either that the child has lived in Texas for at least six months or that one of the other exceptions above apply.

Under the UCCJEA, all states must afford full faith and credit to any order issued by another state. A party who has a child custody order issued by a state other than Texas may register the out-of-state order in Texas if the party is seeking to file a motion to enforce that order here, or even if the party is not. If an enforcement of the registered order is sought, a court in Texas may grant any relief normally available under Texas law. A Texas court, however, may not modify a registered child custody order of a court of another state unless the Texas court meets the requirements to have jurisdiction on its own.

The UCCJEA gives us a number of other helpful provisions to deal with issues that often arise in interstate cases. For instance, it sets forth information that is to be provided to the court in each case, guidelines for serving notice to parties outside of the state, and some information to help courts in different states logistically exchange information, cooperate, and preserve records.

UNIFORM INTERSTATE FAMILY SUPPORT ACT

Much like the UCCJEA, the Uniform Interstate Family Support Act provides uniform laws regarding which state or states should have jurisdiction to establish child support, as well as the registration, enforcement and modification of out-of-state orders.

UIFSA allows for a court of one state to exercise jurisdiction over a person who is a nonresident of that state under some circumstances. For instance, if (a) the individual resided in the state with the child at some time,  (b) the individual engaged in sexual intercourse in the state, which might have resulted in the child being conceived, or (c) the individual registered with the paternity registry in the state, then Texas may exercise jurisdiction over him or her. In the event that suits regarding child support are filed in different states, UIFSA sets forth the procedure to determine which state should ultimately establish the child support.

A court of a state that has issued a child support order retains continuing, exclusive jurisdiction to modify that order. That court is the sole court eligible to modify the order as long as one of the parties or the child continue to reside in that state and as long as the parties do not consent on record that another state should have jurisdiction instead.

A court of a new state may not modify a child support order under its own laws as long as one of the parties or the child stays in the issuing state. However, if a modification of an out-of state-order is sought in a court of a state where both of the parties live at the time the modification is sought, or if the parties consent to the court of the new state, that court may modify the order according to its own laws.

If a state that issued a child support order requests that another state enforce that order, the other state or states may enforce the controlling child support order at the time and may enforce a money judgment from the prior state for child support arrears and interest. The child support order should be registered in the state where the enforcement is sought. However, a party may enforce a child support order of the issuing state in another state without registering the order by sending an income-withholding order to the obligee’s employer. The obligee does have the right to contest the validity of an income-withholding order.

Once an order for enforcement is issued by a state court with continuing, exclusive jurisdiction, or from a court of a state that enforces the order per UIFSA, that order for enforcement may be registered in another state, just as a child support order might need to be registered. That registered order remains the order of the issuing state, rather than becoming an order of the state where it is being registered. UIFSA also allows a party to contest the validity or enforcement of an interstate order registered in a new state.

In addition to dealing with the modification of interstate child support orders, UIFSA addresses the modification of spousal support. However, unlike child support, only the state issuing the order for spousal support can modify it, but UIFSA does provide a means to initiate a suit to modify spousal support in a state other than the issuing state. The initiating state court may make a request to the court with continuing exclusive jurisdiction to make the modification.

Interstate child custody and support issues are complex. The experienced interstate custody and child support attorneys at Orsinger, Nelson, Downing & Anderson can explain the laws to you and navigate them in a way that gives you the best chance of success.