Elizabeth J. McInturff: The importance of determining a child’s home state

Elizabeth J. McInturff

Contested child custody cases are often emotionally charged and legally complex. These disputes become even more fraught when one or both parents contest which state is the minor child’s “home state” with jurisdiction over the child.

Indeed, there are numerous reasons why a parent may be angling for one state to be determined the home state, from school systems to parental rights to child support.

For example, Kevin Federline, Britney Spears’s ex-husband, recently relocated from California to Hawaii with their two children. The move coincidentally occurred just before the oldest turned 18, which, under California law, would have ceased Britney’s substantial child support obligations.

Hawaii, however, allows child support up to the age of 23 if the child is enrolled full-time in either an accredited college or university or a vocational or trade school.

In order to avoid forum shopping and provide clarity and consistency in cases that involve multiple states, the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) was born.

The UCCJEA has been adopted by 49 states, the District of Columbia, Guam, Puerto Rico and the U.S. Virgin Islands. Maryland has adopted the UCCJEA at Md. Code Ann., Fam. Law § 9.5.

At its core, the UCCJEA is a comprehensive legal framework designed to determine which state has jurisdiction over child custody matters and to facilitate the enforcement of custody orders.

The UCCJEA places significant importance on the child’s home state. If there is a home state, that state typically has jurisdiction over the custody matter. “Home state” means:

  • the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months, including any temporary absence, immediately before the commencement of a child custody proceeding; and
  • in the case of a child less than 6 months of age, the state in which the child lived from birth with any of the persons mentioned, including any temporary absence.

Although the UCCJEA does not define the term “lived,” Maryland case law has clarified it as being “physically present” in a state, rather than the legal definition of “domiciled.”

Likewise, the UCCJEA does not define “temporary absence,” but state courts have developed three tests: (i) duration, (ii) intent, and (iii) totality of the circumstances.

Maryland generally looks at the “totality of the circumstances” in determining the child’s home state. For example, Maryland will likely be deemed the home state for a child who travels out of state with a parent for vacations but returns to Maryland for the majority of the six months.

If no home state exists, the UCCJEA allows for jurisdiction based on a significant connection with a state. This can occur when the child and at least one parent have a substantial connection with a particular state.

Additionally, if the court determines that a case involves immediate danger to a child, a state may assert emergency jurisdiction even if it is not the home state or a state with significant connections.

This is to provide protection to the minor child until the underlying issue can be addressed in the home state court. This type of jurisdiction is temporary and should be limited to situations where the child’s immediate safety is at risk.

Sometimes parents each file for custody in the state that they want to claim jurisdiction, e.g. one parent files in Maryland and the other parent files in Virginia. In that event, Maryland courts are tasked with communicating with that other state court.

Importantly, the UCCJEA also provides for the enforcement of custody orders across state lines. States are required to recognize and enforce valid custody orders from other states, making it easier for parents to ensure their rights are upheld. Thus, a parent with a Maryland custody order can enforce the custody order in Virginia, if necessary.

Moreover, a state court may only modify a child custody order from another state if it would have jurisdiction to make an initial determination and the court in the state that the order originated from determines that it no longer has jurisdiction or declines jurisdiction, or a court in either state determines that the minor child’s parents or guardian no longer reside in the state that issued the initial order.

By establishing consistent rules for determining jurisdiction and facilitating the enforcement of custody orders, the UCCJEA plays a crucial role in resolving child custody disputes that cross state lines. However, it is not without challenges and complexities and often relies on interstate cooperation and communication. Thus, family law practitioners must have a deep understanding of the UCCJEA when facing child custody issues that involve multiple states.

Elizabeth J. McInturff, Esq., a partner at JDKatz, PC, represents clients throughout Maryland and Washington D.C. in complex family, civil and commercial disputes. For more information, visit www.jdkatz.com.




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