Out of State Child Custody, Interstate Divorce, and Child Abduction

We have noticed an increase in custody disputes between parents living in different states. Some of this can be attributed to the increasing mobility of families, and increasing likelihood that parents will relocate for employment. We also believe that as joint parenting becomes more common, parents become less willing to permit the other parent to move away with a child. Whatever the reason, these cases are extremely difficult to resolve because, unlike most family cases, there is a clear “winner” and “loser.” If the parents live in different states, it is almost certain that one parent will enjoy the great majority of visitation. The other parent’s time will be rather limited.

Whether a child is in Wisconsin by agreement or after abduction from another state, parent must act quickly to protect their custodial rights. The law governing these interstate custody disputes is notoriously complex. Parents must act quickly to prevent abduction.

The Uniform Child Custody Jurisdiction and Enforcement Act is a law enacted in 49 states that is intended to address these difficult issues. The UCCJEA is designed to prevent a parent from taking a child to another state and filing a custody action there. With very few exceptions, it is difficult to modify a custody order from one state to another state.

The UCCJEA does several important things. The two primary goals are to (1) clarify where a child custody case should be heard when parents live in different states and (b) prevent “forum shopping,” or moving to a different state for the benefit of more advantageous laws. Most important, it defines the “home state” of the child, establishing the state with jurisdiction to make a child custody ruling. Because parents commonly relocate to other states, the UCCJEA also clarifies when, or if, one state can modify a child custody order entered in the home state. In general, if one parent remains living in the “home state,” the case must remain there. When the parents dispute which state should hear the case, the UCCJEA provides tools for choosing the correct state, allows judges in both states to communicate on the decision, and allows parents to make arguments based on emergency, safety, and convenience. The UCCJEA is a very complex rule, not well understood by many lawyers or judges. We have handled many, many cases by applying the UCCJEA and are often successful due largely to our clear understanding of the entire statute.

The UCCJEA also applies to child custody orders obtained in a foreign country, provided that the other country’s laws do not violate basic United States principles. Parents can also take other steps to protect their child if they fear international abduction. Parents should take great care to monitor passports, file passport alerts, and ensure that very specific custodial and jurisdictional orders are apparent in their custody order. Parents should also know whether the country where the child could be taken is a signatory to the Hague Convention on International Child Abduction www.hcch.net. Although there are ways to retrieve a child abducted to another country, it is always incredibly difficult, time-consuming, and expensive. There is no guarantee of success. Therefore, if a parent has even a slight concern of abduction, he/she must do everything possible to obtain specific child custody orders in the United States to prevent the abduction in the first place.

The Uniform Interstate Family Support Act is similar to the UCCJEA, but governs child support, not custody. The Act allows Wisconsin to cooperate more easily with other states to enforce child support orders.

We have successfully tried many of these cases, and we are intimately familiar with the UCCJEA and UIFSA. We will ensure that you are best prepared to protect your child.

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