Interstate Child Custody

When children and child support are involved, jurisdiction is often decided based on a set of uniform laws adopted by all fifty states in order to provide consistency and protect the interests of the children. However, once a court accepts jurisdiction (usually through an initial custody order or a divorce decree) it is more difficult for a different state to later exercise jurisdiction. For example, if Minnesota issued a divorce decree which has a custody order, another state cannot decide custody issues unless certain specific conditions are met.

When Can You Commence an Initial Custody Proceeding?

The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) provides that, except in emergencies, a family, child, custodial parent, or all of the above needs to reside in a state for six consecutive months before they can file a Motion in that State, or commence a proceeding in family court.

For example, if you moved to Minnesota with the minor child on January 1st, you can only file a custody motion after six months, unless your case qualifies as an emergency. However, the UCCJEA will not always determine jurisdiction based on where your child has been living for six months. Sometimes there are other factors to consider when deciding whether Minnesota, or another state, is better equipped to make custody or parenting time decisions. These factors include: domestic abuse, the length of time the child has lived out of the state, the distance between the states, and the nature and location of the evidence necessary to make a custody determination.

Importantly, moving to a particular state with the child, or conversely, removing the child from that state before six months have passed, is not a reason for a court to grant custody rights or parenting time rights to that mobile parent. The UCCJEA does not condone mobility for the sake of locating a ‘preferred forum’ in which to file for custody rights. If that is determined to be what happened, the UCCJEA gives the Courts the authority to disregard as controlling, the amount of time the child has lived in this State, when determining whether Minnesota (or any other state) is the child’s home state.

If either parent wishes to relocate with the child to another state, they must go through the court system for permission. Unfortunately, some parents will attempt to circumvent this process and remove the children without notice. The Parental Kidnapping Prevention Act (PKPA) is adopted in all fifty states and provides legal solutions to such a situation and will help return the wrongly removed child.

International Child Custody and the Hague Convention

If a child is taken by a parent to another country, custody disputes can become much more serious. TheHague Convention establishes legal rights and procedures for the prompt return of children who have been wrongfully removed to a foreign country, as well as for securing the exercise of custody and visitation rights.

The purpose of the Hague Convention is not to prohibit the prospective future removal of a child; but rather, to provide a remedy in the event of the removal of a minor child in the event of a breach of a custody Order. If the removal of a minor child to a foreign country is not in violation of the custody Order of the participating nation (i.e. United States) then the Hague Convention will not apply, as the custody Order is not being violated.

Parents who wish to relocate to a different country with their children must show the relocation is in the best interest of the child. Factors considered include: cultural practices and conditions in the foreign country, any hardships that the relocation would create for the non-relocating parent, whether the foreign country will enforce existing custody decrees, whether the foreign country is a signatory to the Hague Convention, and family or cultural ties to the children. The court must evaluate the relocating parent’s wishes along with the rights of the other parent and the best interest of the child.

What you can do

Moving to another state or relocating to another country can be a significantly more complicated matter when child custody is involved. Whether you have custody over the child and wish to cover all your bases before moving out of state, or if a child over whom you have custody has been wrongly removed to another country, it is important that you consult with an attorney with experience in child custody matters.

At Clausen & Hassan, our lawyers pride themselves on how they serve our clients. Please reach out today for your free consultation—you can call our office at (651) 647-0087 or contact us by email at info@clausen-hassan.com.