Interstate Custody Attorneys in San Diego
Divorce can be difficult for any family, especially when children are involved. In most situations, the divorcing parents can reach a satisfactory custody arrangement that allows both of them to maintain a meaningful relationship with their children. However, if one parent moves out of state, this can put an immense strain on everyone involved and make it challenging to ensure that the rights of both parents are honored.
If you need assistance with an interstate custody agreement, fighting a move-away order, or determining jurisdiction, reach out to Huguenor Mattis, A.P.C. Our firm has worked closely with San Diego parents for more than four decades in complex interstate custody cases. We can sit down with you in a free initial consultation, learn about your situation, and explain how to move forward with your case. To speak to a knowledgeable San Diego interstate custody attorney, call us at (858) 458-9500.
Even when two parents live in the same county, issues may arise in enforcing custody agreements, seeing the children, or fulfilling court orders, but these problems are made worse when the parents live in separate states. While there are some similarities in how states handle custody rights, each state has its own rules. While California has very clear guidelines for how to award child custody following a divorce, every state is different. That means the laws that apply in San Diego will not be the same as those in New York.
When one parent moves out of state and has joint custody or visitation, he or she may face issues with:
- Maintaining a custody plan
- Children wanting to live with the other parent
- Maintaining a visitation schedule
- Enforcing custody orders
- Parental alienation
- Resolving school disputes
- Ensuring care of a special needs child
- Honoring grandparents’ rights
- One parent refusing to return a child to the other parent (parental kidnapping)
In any high-conflict custody case, it is important to remember how the courts evaluate disputes. Family court judges will uphold the best interests of the child above all else. If a parent moving out of state or sharing custody in different states would cause unnecessary distress for a child, the judge may deny a move-away order or modify custody in favor of one parent.
The first step in adjudicating a custody dispute between two parents in different states is determining which location has jurisdiction. Most states adhere to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which outline the procedures for handling interstate custody agreements. These guidelines were drafted in 1997 and have been adopted by every state and territory of the United States with the exceptions of Massachusetts and Puerto Rico. According to UCCJEA Family Code §§ 3400 – 3465, parents must first determine which state has jurisdiction and, if jurisdiction is in question, follow proper procedures for establishing the child’s home state.
The home state is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding.
This means if your child has been living in California for the past six months, your case will be heard here. On the other hand, if your child lives in another state and you are located here, then the proceedings will need to take place in that other state. If the child has not been in a single state for the past six months, then jurisdiction will be decided based on a "substantial connection" between the child and at least one parent and the state.
If there is some dispute regarding the child’s state of residence, that will need to be settled before any custody hearings can be held, according to procedures under the UCCJEA. Factors that can influence a child’s state of residence include:
- A parent and child’s connection to a state beyond simply living there
- If the child receives medical or psychiatric care in a specific state
- If a child is enrolled in school, daycare, or youth clubs in a specific state
- If the child has friends and/or family in a specific state
It is important to document your child’s relationship with a potential home state, as the courts will need substantial evidence to establish that a child has a particular connection to a state. Medical reports showing that your child’s condition can only be treated in one state, psychiatric reports, school records, youth club memberships, and other records can help support your case.
There are certain exceptions allowed under the UCCJEA to the 6-month residence rule, the primary one being if the child has been removed to another state for safety reasons. A state can get temporary emergency jurisdiction, per UCCJEA § 3424(a), if:
- There is evidence of repeated abuse on the part of one parent, either towards the child or the other spouse.
- The child has been abandoned.
Based on these grounds, the six-month prerequisite might be set aside to allow for the proceedings to take place in the new state.
The UCCJEA also has language that bars parents from removing a child from his or her home state in order to establish a new jurisdiction. For example, if a parent travels out of state with his child and attempts to request a custody hearing, the out-of-state court cannot establish jurisdiction under the UCCJEA. Instead, the child’s home state will maintain jurisdiction. The UCCJEA makes it impossible for a new state to issue a custody order when the home state has already issued a custody order, until the 6-month residency has been established.
Once a custody arrangement has been made in a home state, the UCCJEA also creates a framework for its enforcement. Laws have been set up to make it possible to adjudicate disputes between parents who live in different states. This allows visitation rights to remain in force across state lines and creates a system for resolving complicated coparenting issues in two different locations, like which parent is responsible for transporting the child between the two households, and where the child will go to school.
If one parent attempts to travel out of state with the child without a court order, then he can be charged with parental kidnapping. The home state may grant emergency custody to the other parent and contact law enforcement to have the child safely returned. This may also result in a permanent change to custody.
Remember: when two parents disagree about where their child will live, the court will focus on ensuring the best interests of the child. San Diego courts typically believe that both parents should be involved in their child’s life and want to establish joint custody or visitation to ensure healthy child development. When one parents wants to move out of state and maintain visitation, the court will consider how it will impact the child first before granting the parent’s request.
Judges prefer the parents to come to an agreement out of court with mediation, but step in to make a final decision. The judge may:
- Modify custody to grant one parent physical custody and another legal custody
- Grant sole custody to one parent
- Grant joint custody and enforce a custody plan that ensures a balanced amount of time between parents (one parent receiving custody during vacations while the other has custody during the school year)
- Approve frequent visitation when there is a short distance between states or an easy commute
- Approve emergency custody orders in cases of abuse, alienation, and kidnapping
- Allow visitations through online video calls
As you can see, interstate custody can be quite complex. This is why it is essential that you have a legal team on your side that not only understands California family law, but also has experience with the UCCJEA and is familiar with the rules and regulations in other states.
At Huguenor Mattis, A.P.C., our number one priority is protecting families and achieving fair and satisfactory results for our clients. Our firm has worked for more than four decades to find effective solutions for parents in interstate custody disputes and have a proven track record of success among former clients.
If you bring your case to use, you can trust that your rights will be upheld, and your custody case will be handled with professionalism and care. To schedule a free consultation with a San Diego family law attorney, call (858) 458-9500 today.
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