A lot can change after a divorce or breakup. Parents can find new partners, get new jobs, or even move away. Often, the child custody order gathers dust until one parent feels they aren’t being treated fairly. But what then? What options do you have in enforcing custody when parents move to different states?
Enforcing custody when parents move to different states depends on where the child is living, how the orders were entered, and how much contact the family has with the state where the original order was entered. Even then, it matters whether you want the court in your new home state to acknowledge, enforce, or change your existing custody arrangement.
UCCJEA Decides when Custody Cases Can Cross state lines
Every U.S. state has some version of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This is a statute that guides judges on which courts should handle cases when parents or children live in different states. The UCCJEA says which court can enter the initial order, and which court (or courts) can enforce or modify existing orders. “States” in this case includes any other jurisdiction — even other countries. So the UCCJEA applies if you move just across the border, or across the globe.
International Custody Issues in Nadimbali v Byrraju
A recent Michigan Court of Appeals case, Nadimpali v Byrraju, provides a useful example. Subrhamanyam Nadimpali (Dad) and Padma Byrraju (Mom) were married in India in 2005 and then moved to California. Their one child was born in 2008 in the U.S. Dad then had a divorce decree entered in India in June 2011, but didn’t give Mom notice of the proceeding. She filed her own divorce action in California in June 2012.
In 2014, Mom’s visa status changed and she had to return to India. After going to mediation, both parents agreed to a child custody determination that described alternate-week custodial time while the parties lived in the same place, that the child would move to India with Mom no later than April 15, 2014, and then Dad would have parenting time when he visited India.
Mom had intended to move back to the U.S., but that didn’t happen. Instead, she stayed in India. In the meantime, Dad remarried and moved to Michigan. The child visited Dad in the U.S. once, in May 2015, but didn’t want to go back because he was supervised by strangers.
Deciding the children’s Home State
Whether you are just starting a divorce or enforcing a paternity and custody order from years earlier, the first step is often deciding where the children’s home state is. This is usually the state where the child has lived for the last 6 months. However, there are exceptions for very young children and domestic violence situations.
If the state that ordered the last order is also the state where the child lives, you will usually need to go back to that state for any court proceedings (other than the enforcement of child support orders against the parent living in another state). But when the child is the one that moved, or if everyone has moved to another state, things get more complicated.
In Nadimpali, the child lived in California for over six months before the first court order was entered. So California was the child’s home state.
In January 13, 2016, Mom asked the Family Court in Hyderabad, India, to award her guardianship and exclusive custody. By that time, the child had lived in that jurisdiction for over 6 months as well. The child never lived in Michigan, but Dad did. The question was whether California still had jurisdiction, or if India or Michigan could enforce or modify the existing custody order.
When Jurisdiction over CUSTODY Ends
Generally, the court that enters a child custody order retains exclusive, continuing jurisdiction over that custody order until the child becomes an adult. That means the same court — and in Michigan, usually even the same judge — will keep authority over a child’s case over time.
But sometimes, jurisdiction over custody ends. The court entering an initial custody order can decline to exercise jurisdiction if it appears another state would be better able to hear the case and the evidence. Exclusive continuing jurisdiction can also end if:
- The child is no longer connected to the state
- Neither parent nor the child live in the state
In Nadimpali, Mom asked the California court to give up jurisdiction of the case on March 10, 2016. She based that request on the fact that she and the child lived in India, and Dad lived in Michigan. The California court made a tentative ruling that it wasn’t clear if Dad’s contacts were enough to continue jurisdiction there. It stated, “Whether Michigan or India has jurisdiction over custody now is for the courts in those jurisdictions to determine based on relevant laws.” Based on that, on October 15, 2016, the India Family Court granted Mom’s request for exclusive custody.
Enforcing Foreign Custody Orders
Two days later, Dad filed papers in a Michigan court asking that court to register the California custody order and enforce his parenting time under that order. The UCCJEA allows parents who move to different state to register their custody orders with the local courts. This is most often used to collect child support when a payer moves out of state. However, it also allows for the court to enforce the custody order when parenting time doesn’t happen the way it is ordered.
When enforcing custody orders when parents move to different states, the UCCJEA requires the enforcing parent to do a few important things:
- File the foreign judgment
- State (under penalty of perjury) that the order has not been put aside, stayed, or changed
- Give the other parent (or other custodian) notice of the intended registration
When Dad asked Michigan to register the California order, he also filed a motion to enforce it. But he didn’t tell the court about the India court order. Mom objected to Michigan enforcing the California order after India had modified it. That created the issue that brought the case to the Court of Appeals.
The court said that by not referencing or including the India order, Dad violated the UCCJEA and he couldn’t ask Michigan to enforce the family’s custody order. The court also noted that Michigan would not have jurisdiction to modify the order, since the child never lived there.
Enforcing custody orders when parents move to different states requires careful attention to the UCCJEA and the details of who lived where, when. It should not be handled lightly. Whenever multiple jurisdictions are involved, you should be sure to hire an experienced family law attorney to help you register and enforce the foreign custody order.