How to Change Jurisdiction for Child Custody
The late Supreme Court justice, Antonin Scalia, once wrote that the first question to ask in every court case is: Does the court have jurisdiction? This is a very important question to ask in a child custody case. In many child custody cases, one parent will try to file in a forum that is not convenient for the other parent, just to make the case more difficult. You don’t have to accept this, because there are rules for which courts have jurisdiction to hear child custody cases, and which courts don’t.
If you are in a child custody case, and any of the laws below say that your court does not have jurisdiction, you may file a motion to change jurisdiction or dismiss the case. The laws that govern jurisdiction and venue in child custody cases include:
· Federal constitutional law, as interpreted by the Supreme Court and other courts
· Oklahoma state statutes on jurisdiction and venue
· The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
Federal Constitutional Issues
The U.S. Supreme Court has held that if a court does not have “personal jurisdiction” over you, it is unconstitutional for the court to hear the case. To have “personal jurisdiction” over you, at least one of the following conditions must exist:
1. You live in the state where the court sits
2. You consent to jurisdiction of the court
3. You are served in the state where the court sits
4. You have “minimum contacts” with the state where the court sits. “Minimum contacts” is a difficult concept to define, and there are many court cases on minimum contacts.
In Hanson v. Denckla, the U.S. Supreme Court said, “The application of that rule [on minimum contacts] will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”
In World-Wide Volkswagen v. Woodson, the Supreme Court held that to have minimum contacts, “the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.”
The U.S. Supreme Court has not addressed the question of which county has jurisdiction; it has only addressed which state has jurisdiction.
Oklahoma State Law
Under Oklahoma law, a court may not hear a divorce case, unless:
1. One spouse has resided in Oklahoma for the past six months immediately preceding the filing of the petition, 43 O.S. § 102, and
2. One spouse has resided in the county where the court sits, for the past thirty days immediately preceding the filing of the petition. 43 O.S. § 103.
The proper venue for a paternity case is in the county where:
1. The child resides or is found;
2. The respondent resides or is found if the child does not reside in this state. 10 O.S. § 7700-605.
The venue for a guardianship case is:
1. The county where the minor resides;
2. The county where the proposed guardian resides, if the proposed guardian is a family member, or
3. The county where a judge of the court where the petition was filed transfers the case, if the minor owns property in that county. 30 O.S. § 1-115.
The venue for an adoption case is:
1. The county where the prospective adoptive parents live;
2. The county where the child lives;
3. Tulsa County or Oklahoma County; or
4. The county where the proceeding to terminate the parents’ parental rights took place. 10 O.S. § 7502-1.2.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
As of this writing, every state except Massachusetts has enacted the UCCJEA, and the Act is under consideration in the Massachusetts legislature. The UCCJEA exists so that a parent may not travel to a state where he knows he will get a favorable hearing. You may read the UCCJEA here.
The provisions of the UCCJEA exist in addition to the U.S. Supreme Court cases and Oklahoma state statutes cited above. Thus, no state that had adopted the UCCJEA may hear a child custody case unless it has jurisdiction under the U.S. Supreme Court cases and the UCCJEA. An Oklahoma court may not hear a child custody case unless it has jurisdiction under the U.S. Supreme Court cases, the Oklahoma statutes, and the UCCJEA.
The UCCJEA provides that, if you file an “initial” child custody case (that is, a case involving a child where there has been no previous court order regarding the custody of that child) in Oklahoma, an Oklahoma court does not have jurisdiction to hear the case unless one of the following four conditions is present:
1. Oklahoma is the child’s home state on the day the petition is filed, or was the child’s home state within six months before the petition was filed, and a parent or person acting as a parent lives in the state
2. No court of any other state has jurisdiction, or a court of a state that has jurisdiction has declined to exercise jurisdiction on the ground that Oklahoma is a better forum and
a. The child, and at least one parent, or person acting as a parent, have a “significant connection” with Oklahoma, and
b. Substantial evidence, about the child’s “care, protection, training, and personal relationships” is available in Oklahoma
3. All courts that have jurisdiction have declined to exercise jurisdiction on the grounds that Oklahoma is a better forum
4. No court of any other state would have jurisdiction.
Because the UCCJEA is law in every state except Massachusetts, the same law governs jurisdiction in other states as well. If your case has been filed in another state, substitute the other state’s name for the name “Oklahoma” in the language above.
See the statute on initial child custody jurisdiction here.
After an Oklahoma court has made an initial child custody jurisdiction, that court has “exclusive, continuing jurisdiction” over the child. No other court may make any decision to modify custody or visitation, unless
1. An Oklahoma court rules that neither the child, nor a parent, nor a person acting as a parent, have a significant connection with the state, and that substantial evidence about the child’s care, protection, training, and personal relationships is available in Oklahoma
2. An Oklahoma court, or a court of any other state, determines that the child, the child’s parents, and any person acting as a parent live in Oklahoma.
Again, if another state made the initial child custody determination, substitute the other state’s name for the name “Oklahoma” in the language above.
Also, a court may not modify a child custody determination, unless the court would have had jurisdiction to make an initial custody determination.
Special Issues under the UCCJEA
Emergency jurisdiction – Even if a court does not have jurisdiction under the UCCJEA, the court may make a temporary child custody determination in the case of an emergency, if the child, or the child’s sibling or parent, has been abused or is threatened with abuse. 43 O.S. § 551-204.
Simultaneous proceedings – If someone has filed a custody case in one state, no court of any other state may make any ruling on the custody of the same child, unless the first court has terminated the proceeding, or the first court has stayed the case on the grounds that the other state is a more convenient forum. 43 O.S. § 551-206.
Inconvenient forum – Even if a court has jurisdiction under the UCCJEA, the court may choose not to exercise jurisdiction, if the court determines that it is an inconvenient forum. 43 O.S. § 551-207.
Unjustifiable conduct – Even if a court has jurisdiction, the court may decline to exercise jurisdiction if the party invoking its jurisdiction has engaged in “unjustifiable conduct” to invoke its jurisdiction. 43 O.S. § 551-208.
So how do you change jurisdiction in a child custody case?
In every court case involving the custody of children, the party who files the case must file a “UCCJEA Affidavit.” This affidavit must state:
1. The child’s addresses for the past five years
2. The names and current addresses of all persons with whom the child has lived in the past five years
3. Whether the party filing the affidavit
a. Has participated in any other case involving the custody of the child
b. Knows of any other case that could affect the custody of the child
c. Knows the name and address of any person not a party to the case who might claim custody of, or visitation with, the child. If the party filing the affidavit knows of any such person, he must submit that person(s)’ name and address to the court.
So, if you receive notice that a child custody case has been filed against you, check and see if there is a UCCJEA affidavit. If there is no UCCJEA affidavit, ask the judge to stay the case until a UCCJEA affidavit is filed. Also, if the affidavit does not contain the required information, ask the judge to stay the case until the person filing the case has submitted the required information. The law says that if a person does not file a UCCJEA affidavit, or if the affidavit does not contain the required information, then “the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.”
Also, if the UCCJEA affidavit contains the required information, see if any of the information in the affidavit is not true. If someone has included false information in a UCCJEA affidavit, let the judge know. If the information in the affidavit is true, and the court still would not have jurisdiction under the laws cited above, ask the judge to dismiss the case due to lack of jurisdiction.
Read the law on UCCJEA affidavits, here.
Assert your rights – don’t be a victim of forum-shopping
“Forum-shopping” – the practice of traveling to another state to find a favorable forum – has long been a problem in American courts. The UCCJEA, as well as other jurisdictional provisions regarding custody, is intended to prevent forum-shopping. If someone has filed a custody case against you in a forum that does not have jurisdiction, you may assert your rights. The Persaud Law Office has successfully gotten a number of child custody cases dismissed because the forum was not appropriate. If you have questions about jurisdiction in a child custody case, contact us today.
Photo of child courtesy of https://pixnio.com/creative-commons-license. Licensed under Creative Commons 0.0. Photo of U.S. map courtesy of https://commons.wikimedia.org/wiki/File:Map_of_USA_showing_state_names.png. Licensed under Creative Commons 3.0 Unported.