How Is Child Custody Decided When Parents Live In Different States?

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By Karie Boyd, Guest Author - January 18, 2016

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Child custody after divorce can be complicated, and that is especially true if you and your former spouse are living in different states. Not only do you decide how your children will spend time with each of you, you must decide how support payments will be paid and how much will be paid. Support payments are ultimately decided by the court based on a variety of factors. Where the parents reside is one of those factors. 

How Child Custody and "Home State" is Decided

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJA) dictates how courts handle custody decisions when the parents live in two different states. The Act gives courts the authority to determine which state is considered the child's home state. The decision is based on several factors, in order of priority: 

  • The state making the decisions is considered the child's home state. The child must have lived with the parent in that state for at least six months.
  • The connections your child has with other people in the state will also determine if it is his or her home. For example, relationships can include teachers, grandparents, friends, doctors, and other people.
  • If the child lives in a certain state due to safety reasons, it can be considered his or her home state. For example, if you moved to another state with your child to get away from an abusive ex, the new state may be considered the home state. 

If a state cannot meet any of these requirements, its courts will not be able to issue a custody judgment. A judgment can only be made in one state, and once the decision is made, no other state can modify the judgment. Once the home state is determined, your custody hearings will take place in that state as they normally would if both parents lived in the same state.

How Child Support Jurisdiction is Decided

Aside from handling child custody judgments, the court will also handle child support payments. You need to decide which state will handle support: the home state, or the state where your ex lives.

Under the Uniform Interstate Family Support Act (UIFSA), you have the right to obtain child support from your ex, no matter where he or she lives. For a court to handle a support case, it must have jurisdiction over both parents. The court will declare jurisdiction over a non-custodial parent, even if he or she lives in another state if:

  • The parent lived in that state when the parents applied for the custody order.
  • The whole family lived together in the state where the custodial parent now lives.
  • If the court doesn't have jurisdiction over the parent, but he or she voluntarily agrees to a switch, the court will claim jurisdiction.

Why It's Important to Correctly Choose Jurisdiction

Choosing the state that will hear the support case is important because support amounts are determined by state laws, which can vary. For example, California follows an "Income Shares Model" when it comes to determining how much child support is paid. This model requires the child receive the same amount of parental income he or she would have received if the parent still lived in the same household. Most states follow this model, but there are some that do not. These other states follow either a Percentage of Income Model or a hybrid of the two. Living in two states that allocate child support differently can be confusing.

If you are in the middle of a custody battle for your child and in need of help, contact an experienced family and divorce law professional for help.

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