Custody Issues When the Child Resides in a Different State

What if your child lives in Virginia and you live in Maryland. Can you file for custody in Maryland even though your child lives in another state? The short answer is that it all depends.

The Uniform Child-Custody Jurisdiction and Enforcement Act (or the UCCJEA) has been adopted by all states and the District of Columbia. The UCCJEA was enacted to prevent a parent from moving the child to another state just to re-litigate the issue of custody in that state’s court. For example, if the parents and child reside in Maryland, Maryland holds a custody hearing and awards both parents joint custody, the UCCJEA was enacted to prevent the mother from moving the child to Virginia just to try and have Virginia court conduct a new custody hearing on the hope that the Virginia judge might award her sole custody.

Once a state exercises jurisdiction and decides the issues of child custody by entering custody order, that order is given full faith and credit by every other state. Full faith and credit means that the Courts in every state will recognize that child custody order.

If the child lives in a different state than one of the parents, the UCCJEA determines which state has jurisdiction or the right to hear the child custody case. Under the UCCJEA, the Courts must determine where the home state of the child is. The home state is where the child has lived for at least six (6) months within in the last six (6) months.

Determining home state can be a confusing so here is an example: your five (5) year old son lived in Maryland his whole life until one (1) month ago when your son’s father moved him to Virginia. Under the UCCJEA what state is the home state? The answer is Maryland because even though your son currently lives in Virginia, up until one (1) month ago he lived in Maryland. Since Maryland is the home state, that means that Maryland has the right to decide custody and you can file for custody, visitation, and child support with the Maryland courts.

But, if your son’s father moved him out of the state of Maryland one (1) year ago and that whole year he has been living in Virginia, you could not file for custody, visitation, and child support in Maryland because Virginia is your son’s home state. Even though you live in Maryland, you would have to file your custody case in Virginia.

Changing the hypothetical a little – say that you, your son, and the father all used to live in Maryland. When you and the father separated, you filed for custody in the Maryland court. A custody hearing was held and the father was given sole physical custody of your son with you to have visitation. A few months after the hearing, your son’s father moves him to Virginia, where he has lived for several years.

Now you want to file a Motion to Modify Custody asking that the court award joint physical custody – but where do you file it? In Maryland where you live and where the initial custody order was entered or Virginia because that’s where your son now lives?

Under this UCCJEA, once a Court has made an initial custody determination – meaning the Court has decided who has custody, visitation schedules, child support, etc. - generally that Court retains the right to hold a hearing to modify custody, visitation, and/or child support.

In the hypothetical posed above, even though your son now lives in Virginia, because Maryland made an initial custody determination, generally Maryland still has jurisdiction to hear your Motion to Modify Custody. It wouldn’t matter if your son has just moved to Virginia or if he had lived there several months or several years before you filed your Motion to Modify. Maryland originally decided the issue of custody so Maryland still has jurisdiction.

However, there are a few exceptions to this rule – meaning there are a few things that could happen that would prevent Maryland from hearing your Motion to Modify Custody. First, if neither you, your son, or the father still lives in the state of Maryland, the Maryland Courts will no longer be able to hear the case and you will need to file your Motion to Modify Custody in the state where your son lives (Virginia).

Second, the Maryland Court could issue a written order saying that Maryland no longer has jurisdiction because it is no longer the appropriate Court to hear the Motion to Modify.

The issue of custody, visitation, and child support are always very complex when the child lives in another state so it is best to contact a Maryland child custody attorney who can review the facts of your specific case and advise you on the law. Our office has experience dealing with UCCJEA and out-of-state custody orders – please contact our office today so we can advise you of your rights and ensure both you and your child are protected.