Interstate Visitation Questions

[mistoffolees]

>yes, but 202(a)(2) plays into this since dad still resides in
>the original state.
>
>Then there's 207 too.
>
>Yes, judges change jurisdiction all the time, and I'll admit,
>I just went through this in Aug/Sep.
>
>I don't live in the home state anymore that gave us our
>divorce and custody of our son to the father.  
>
>But in August, we went to court because our son wants to live
>with me, mom.
>
>Dad brought up the fact that he wanted jurisdiction to stay in
>our original state.  
>
>Based on 202(a)(2), I thought jurisdiction would stay in the
>original home state until both dad and son no longer lived
>there.  THEN jurisdiction would follow the child (son).
>
>The judge disagreed with me...

Because you were wrong.

202(a)2 does not override 202(a)1. Notice the 'or' between (a)1 and (a)2. If eaither one of these is true, then the original state loses jurisdiction.

As soon as the child no longer has a residence in the state, 202(a)1 says that state no longer has jurisdiction.

The reading of this is clear. When the child moves and establishes residence in another state (typically defined as 6 continuous months), the original state loses jurisdiction. Whether NCP stays in the state is completely irrelevant. Your judge even told you that.

Jurisdiction goes where the kid lives for 6 consecutive months-with very few exceptions.

[mistoffolees]

>207 (b) (5) comes into play.

Once again, you're misreading it.

Only the state which would otherwise have jurisdiction can exercise 207. Let's say the divorce is in TN and a few years later, CP moves to WV with the child. After 6 months, WV now has jurisdiction because of 202.

WV could, if they wish, say that WV is really an inconvenient jurisdiction (if, for example, the CP moved out of state with the kid a month ago and has not established new residency, yet). That is entirely within WV's prerogative because they have jurisdiction under 202.

TN does NOT have any right to claim jurisdiction. 207 only applies to the state which has jurisdiction under 202. A non-jurisdictional state can not claim jurisdiction under this (or any) clause. IOW, 207 lets a state GIVE UP jurisdiction, but does not let a state TAKE jurisdiction.

>
>Jurisdiction stays in her case because it's in the decree and
>they agreed to it.

As I've already stated, you can't agree to violate Federal Law and expect it to stick. You can reach such an agreement and as long as neither party challenges it, it can work. But as soon as one party wants to change jurisdiction and files with the court to do so, that clause is going to be thrown out. Judges don't like people agreeing that they're not going to listen to what the judge or law says.

You COULD sue the OP for breach of contract if they sign that agreement and then later try to change jurisdiction, but IMHO, you'll lose. The clause will be considered invalid so breach would be irrelevant. It's just one of those clauses that lawyers put in because it makes people happy, but it doesn't mean anything.


Simply, you can't override Federal Law no matter how much you wish you could. Jurisdiction is where the child has lived for them most recent 6 month period - with very, very few exceptions.

[MixedBag]

" If eaither one of these is true, then the
original state loses jurisdiction."

Put the shoe on the other foot.

If I were my EX, who now doesn't have primary residential custody, I would take the position that "Hey, I'm still here in this state and I haven't moved, therefore, it should stay here."

EX#3's attorney in OH told us this was correct.

So let's just let this one lie....

[mistoffolees]

>" If eaither one of these is true, then the
>original state loses jurisdiction."
>
>Put the shoe on the other foot.
>
>If I were my EX, who now doesn't have primary residential
>custody, I would take the position that "Hey, I'm still here
>in this state and I haven't moved, therefore, it should stay
>here."
>

You don't seem to get it. It doesn't matter what position you or your ex take. The law is clear.

[MixedBag]

so let's agree to disagree and let this one lie.

[gidgetgirl]

For those who are interested in this topic:

http://www.abanet.org/legalservices/lamp/cle/childcustody-part1.pdf

[Davy]

Mist ... you posted :

>Pay close attention to Section 202

I did. Did you bother reading 202.a.1? It says that a state retains jurisdiction only so long as the child has a continuing relationship with that state. Infrequent visitation does not generally count.

So your own source confirms what I said. Once the child has been out of state for 6 months, that state no longer has jurisdiction.

>
>IMO I highly doubt a judge would be so willing to change
>jurisdiction since the BM is bouncing around the US.

Judges change jurisdiction all the time. And what you've described is not 'bouncing all around the US'. Families move all the time. It's a fact of life. Your agreement specifically says that she's allowed to move. As Lilywhite says, you don't have much grounds to complain here.

<<< ending your post   <<<

You are totally mis-interpreting these statues and by doing so defeating the very essence for the existence and purpose of both the UCCJA (and EA) as well as the PKPA.  

For example,  section 202.a.1 references 'this state' in order to allow 'this state' to relinquish jurisdiction NOT formulate a reason to secure or override jurisdiction of another state ( aka judicial competition ).

As you know OP asked about the non-existent standards for interstate access to children.  A legitimate and interesting question but it was used to allow others to run off at the mouth with their own OPINIONS or the OPINIONS of some money-grabbing half-a$$ attorney that quite frankly don't know dittly squat.  Very damaging to children and this site.

"Bouncing all around the US" plays to the welfare of children and should be of great interest to a court with continuing jurisdiction.  "Forum shopping" is a jurisdictional issue - when someone files one or more custody proceedings in foreign states (ie Illinois) clearly absent jurisdiction normally to gain favorable rulings.  It gives rise to false accussations, PAS, substantial legal fees, etc, etc.  

In many cases, there is substantial abuse, neglect and exploitation of children.  The characterization of Parental abductions are likened to stranger abductions.  

One would hope that our society and particularly frequent posters on this site would have a zero tolerence for these pitiful situations.

IMHO, Gabesmom (and Dad) are doing what they can (knowing all the players) under the circumstances ... at very least they're seeking advise and support.  She should not have to defend her inquiry.

 

[mistoffolees]

You're accepting one side of the story without question. For example, Mom is planning to move temporarily to her parent's house and then permanently to another state. This is hardly "bouncing all around the US" nor is it indicative of abuse.

Furthermore, there is a well accepted standard in this country that the state which has jurisdiction is the state where the child has lived for the most recent 6 month period. That is the norm everywhere. The attempts to pretend that this is wide open and not relevant do nothing to further the understanding of what is acceptable and unacceptable - particularly when the only way to defend the "we can ignore where the child lives" argument is a grossly distorted reading of the law - as I've already shown.

[Kitty C.]

....if the state where the child resides the longest is the state who has jurisdiction, then why did CA still have our custody order YEARS after we had established residency in IA?  I can't put a finger on it and I have no idea if it's federal or state, but I know I have heard about certain laws that prohibits parents from 'state shopping' in order to get a 'better deal' with either custody and/or support.  Which is why I believed CA retained jurisdiction in our case long after DS no longer lived there.

[Davy]

Hi Kitty, please let me elaborate on your post.

From my past research.  A foundation Uniform Child Custody Jurisdiction Act (UCCJA) was created to bring some order to custody determinations and to reduce and eliminate judical competion among the states.  As each state enacted the UCCJA they made changes (to coordinate with their own custody laws) like dropping the "or's" "and's" and "but maybe's" as well as entire paragraphs, etc which of course defeated the uniformity (some state's were forced to revise for uniformity).   This lack of uniformity defeated the main purpose of the UCCJA and gave birth to the federal Parental Kidnapping Prevention Act (PKPA; 1981).  The verbage above (or something very close to it) use to be a preamble in the PKPA I guess to justify it's existence.  The PKPA is much shorter and sweeter; direct and to the point.

The UCCJA and PKPA contains language as such :  

a court of this State has jurisdiction to make an initial child-custody determination only if:

(1) this State is the home State of the child on the date of the commencement of the proceeding, or was the home State of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;

... and continuing conditions

---The 6 month rule attorneys talk about ($$$) and is heavily basterized on this site is only one of many issues governing jurisdiction but it is very difficult to LEGALLY defeat the continuing and exclusiive home state jurisdiction as long as a left-behind parent continues to reside in the home state.  Home state jurisdiction is normally reqlinqueshed if no parties continue to reside in the state or no party objects.  

Hopefully you can apply these statues to the particulars of your case.

BTW, Wendl's situation is in our heaaaaaaaarts and mind.