Oftentimes, divorced or unmarried couples with children end up living in different states. In such situations, the question arises as to the enforceability of a custody order issued in one of the states. After having gone through all the trouble of going to court and obtaining an order, a parent has reason to be concerned. Fortunately, according to federal law, states are required to abide by custody orders granted in other states.
If custody is shared between parents, as is usually the case, before one parent can decide to move and retain rights to visitation with the child, a new agreement or a court order must be obtained outlining the new terms of timesharing. In the absence of both parents consenting, an action must be filed in court for a modification due to relocation of one parent. Before entering a new order, the court will consider various factors in order to determine what is in the best interests of the child. Once the determination is made, the new order will dictate the new terms of visitation, or time-sharing.
The possibility then exists that the relocating parent may seek a different custody order in his or her new home state. Thankfully, due to the federal Full Faith and Credit Given to Child Custody Determinations law, in most cases, the moving parent would be unable to obtain a new custody order if a current order exists that was issued by the child’s “home state.” The home state is defined as the state in which the child lived with either or both parents for a minimum of six consecutive months. The provisions of this law apply to minors under 18 and include initial, temporary, and permanent orders and modifications. (28 U.S.C. Sec. 1738A)
To qualify for full faith and credit, the custody or visitation order must have been made in a court in the child’s home state which has jurisdiction under that state’s laws. A court order issued by a state which was the child’s home state within the six months prior to the commencement of the action can qualify for full faith and credit if the child is absent from the state because of his removal or retention by one of the parents and a parent still lives in the state. A parent cannot simply retain a child who is on visitation, and expect a court in the new state to issue a different custody order.
In certain emergency situations, a court can assert jurisdiction in a custody proceeding, if a child is present in the state and has been abandoned, or it is necessary to protect the child because the child, a sibling, or a parent has either been mistreated or abused, or has been threatened with such.
In the case in which there appears to be no home state, a court can assume jurisdiction if it is in the best interest of the child because the child and at least one parent have a significant connection with the state apart from mere physical presence, and there is substantial evidence that the child will be cared for, protected, trained, and have personal relationships in that state.
As our society becomes increasingly mobile, parents, as well as the states and the federal government, have a significant interest in ensuring that the child custody orders of the various states are enforced throughout the country. If you have a child and have any questions concerning child custody, visitation, or time-sharing, call the Florida Child Custody Attorney at the Law Offices of James S, Cunha, P.A. Mr. Cunha is a compassionate and experienced family law attorney. Call today for a consultation toll free at (800) 558-1227 or locally at (561) 429-3924.