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Family Law: Custody and Parenting-time Issues For Parents Living in Different States

 

This is the second in a series of three articles about parents and children who live in or hope to live in different states It discusses the importance of maintaining the child’s relationship with both parents. The first article, Family Law: Can My Child Move Out of New Jersey?, describes New Jersey laws that apply when one parent wants to move with a child or children out of New Jersey. The third article, Family Law: Child Support Issues for Parents Living in Different States, addresses child support issues for parents who live in different states.

There are challenges to parenting a child when the parents live apart. Those challenges may be more complicated when the parents live in different states. The biggest challenge of long-distance parenting is making sure that a child has a strong relationship with both parents.

ENTERING AN INITIAL ORDER OF CUSTODY/VISITATION (PARENTING TIME)

When parents living in two different states want to make their custody arrangement into a formal court order, or when they need to resolve a dispute about custody or visitation (also called parenting time), it may be difficult to figure out which state court is supposed to handle the case. The question of which court should hear a case is a question of jurisdiction. In custody cases, jurisdiction depends mostly upon the following:

  • Do any court orders already exist?
  • Where does the child presently live?
  • Where has the child lived before this time?

Home State
If no court has ever entered an order for custody or visitation, the general rule is that a court in the state where the child (and one parent or caregiver) has lived for the last six months is the state court that should resolve the case. If the child is less than six months old, the state where the child was born and has lived since birth has jurisdiction. This is called the child’s home state.

Significant Connections
If the child has not lived in one state since birth or for the last six months, she has no home state. When there is no home state, courts consider which state is best suited to resolve the matter. They look at significant connections between the child and the state. For example, the state that is home to the child’s relatives, teachers, or doctors, who may be potential witnesses if a trial is necessary, has significant connections. When there is no home state, a state’s court can choose to take jurisdiction if :

  • The child has previously lived in or currently lives in the state;
  • At least one parent is currently living in the state; and
  • The state has significant connections to the child.

If the courts in two states both determine that their state may take jurisdiction over the case, the two courts are required by law to communicate with each other to decide jointly on which state’s courts should resolve the issue.

Exceptions to the Rule

Fleeing. There has long been concern about a parent taking a child from her home to another state without the appropriate consent of the other parent or court order. The laws on jurisdiction, called the Uniform Child Custody and Enforcement Act and the Parental Kidnapping Prevention Act, require courts to reject (decline) jurisdiction over cases where a parent brings a child to a new state without the appropriate consent or court order.

Note that the courts are permitted to accept jurisdiction if a parent flees from the home state to a new state to avoid physical abuse of him- or herself, or a child by the parent left behind. However, the fleeing parent must notify either the local police or the child protection agency (in New Jersey, that is the Division of Youth and Family Services, DYFS) of the concern and the intent to flee.

Inconvenience. A parent can ask the court of another state to decline jurisdiction because of significant inconvenience. To decide this issue, the court will consider factors such as:

  • The distance between the states;
  • The relative financial circumstances of parties;
  • Any domestic violence history between the parties;
  • How long the child has resided outside the state; and
  • The nature and location of evidence needed.

CHANGING/MODIFYING AN ORDER

Once a state court properly takes jurisdiction of a case and enters a custody, visitation, or parenting-time order, the court of that state may keep jurisdiction until both parents and the child move out of state. The tricky question is what happens when one parent moves with a child out of the state that entered the first custody/visitation order, and one parent remains in that state. The courts in other states are not permitted to change the custody/visitation order as long as the first state’s court maintains jurisdiction.

When a child has lived in a new state for several years, either parent can request that the court of the state that entered the first custody/visitation order give up or decline jurisdiction in favor of the new state. The courts will look at factors such as how long the child has lived in the new state and which state has most of the evidence or witnesses that would be needed for a hearing.

ENFORCING A CUSTODY/VISITATION ORDER

If a child custody or parenting-time order is violated by one parent, it may be enforced in the state of either parent. A court enforcing the order may be different from the court that has jurisdiction to change the order.

Example: The mother and child live in Florida, but the father of the child has remained in New Jersey. A court order of custody from Florida can be enforced by either parent in New Jersey or in Florida.

A parent seeking to enforce a custody or parenting-time order should consider which court will be most effective in enforcing any order against the offending parent. If the mother (in the example) refuses to transport the child to New Jersey, as required by the court order, the father should seek enforcement in the Florida court, which may penalize the mother—for example, by issuing a bench warrant for her arrest or requiring her to pay the father’s attorney’s fees. On the other hand, if the father refuses to return the child after a lengthy visit, it would be best for the mother to try to get the court order enforced in the New Jersey court, which may penalize the father.

If a parent is trying to enforce an order in a state that did not issue that order, the parent must register the order with the court before (or sometimes at the same time as) filing the motion to enforce it.

TIPS ON LONG-DISTANCE PARENTING

When parents live in different states, especially those separated by long distances, it is critical that both parents try to support the child’s relationship with both parents. Frequent contact by telephone, e-mail, and instant messaging may help the non-custodial parent to be a part of the child’s daily life. Adding visual contact with video conferencing and exchanging digital pictures and videos may further this goal. Parents who do not have access to a computer at home may go to public libraries, which may provide access to the Internet.

Even with young children, these connections may help maintain close relationships. Sending the non-custodial parent videos of physical developments and events may help him or her keep up with the child. Similarly, a video or digital recording of the non-custodial parent reading a book may help the child feel closer to a physically distant parent.

For school-aged children, parents and children (even those far away) may enjoy some day-to-day activities, such as watching a television show or a sporting event together, by planning in advance. The parent and child can talk about the show or sport by phone during the event or afterward. Even sharing the experience of gazing at the moon or stars while talking on the phone, instant messaging, or texting may be a special tradition.

Encouraging a child to plan for and anticipate in-person parenting time helps the child feel more in control of his or her schedule and may help the child to more fully enjoy the in-person time with a non-custodial parent.

This article is from the July-August 2009 issue of Looking Out for Your Legal Rights®.

 

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