Courts’ Jurisdiction over Custody and Visitation Cases

Courts' Jurisdiction over Custody and Visitation Cases

The legal system has a very important concept called “jurisdiction.”  Basically, a court is given the authority, or jurisdiction, over a limited number of things.  A court’s jurisdiction is generally limited by geography and subject matter. For example, federal courts typically only hear cases involving federal laws or disputes between people in different states.  Most state courts are courts of “general jurisdiction,” meaning they hear cases involving any of the state’s laws.

This can get complicated when parents and families move around, but the legal system has attempted to address those problems.  

Kidnapping is a bigger issue than most people realize

Police and the courts have not always treated this as a serious issue

Let’s say two parents are sharing custody.  The kid is spending two weeks with mom, but then mom is supposed to return the kid to dad on Friday night.  What if mom was angry because she wanted to spend the weekend with the child, so she just kept the kid for the weekend in violation of a child custody agreement?  Well, the mom might have just committed kidnapping.

In fact, most kidnapped children are taken by a parent.  Police and the courts have not always treated this as a serious issue.  It is true that a delayed visitation or a misunderstanding will not always rise to the level of a crime, but there are as many as 200,000 criminal parental abductions every year.  

There have been examples of children being abducted by abusive parents and abused or even killed. Kidnappers would often flee across state lines, but laws have been passed to fight that.  

The Uniform Child Custody Jurisdiction and Enforcement Act

The federal government does not want to get involved in family law issues, so the states all have to adopt the same rules for anything to happen (there is a federal Parental Kidnapping Prevention Act, but it largely acts to make state orders transferable).  Today, almost every state has adopted some form of the Uniform Child Custody Jurisdiction and Enforcement Act.  

This uniform law was drafted by a group called the National Conference of Commissioners on Uniform State Laws, which is an organization of lawyers that seeks to provide state lawmakers with well-written laws states can adopt on key issues.  

Jurisdiction is perhaps the most important issue addressed by the uniform law.  Before it was passed, a state would often claim jurisdiction over any child that was present within its border.  So a parent might get unhappy with a custody agreement entered by a Texas court, and then the parent could try to flee to California to get their courts to make a new order.  

The uniform law put an end to this type of behavior by presenting a clear hierarchy for jurisdiction.  

The child’s home state, meaning where the child lived for at least six months, would generally have jurisdiction.  That jurisdiction will make custody determinations, and the state that made a custody determination is usually the only state that can modify the order.

Only in emergencies or other unusual circumstances can one state overrule an order of another state. This provides a lot more stability and reduces the incentive for kidnapping.  

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