Sharing parenting time can be a challenge, even when both parents live in the same town. Distance, of course, makes splitting time and exchanging children even more complicated. When the parents live in different states, there may be added legal issues and procedural requirements, as well.
Practical Issues in Interstate Custody Cases
One obvious challenge in most interstate cases is the way travel time and expense may limit the options for parenting time. Of course, these limitations have more to do with distance than with state lines. When one parent lives in Elgin and the other in Lake Geneva, the practicalities are much different than if one parent lived in St. Charles and the other in Boston.
When the distance between the parents’ homes is significant, the parties or the court must make adaptations to traditional parenting schedules. It’s unlikely, for instance, that a child will be or should be traveling 500 miles each way every other weekend. Similarly, right of first refusal provisions–clauses in some parenting plans that allow the other parent to opt to care for the children when child care is needed–are less likely to be workable as the distance between the two homes increases.
Ideally, the parents will be able to work together to come up with a plan that keeps both actively involved in the children’s lives despite the distance. When that’s not possible, the court will make a determination that serves the best interests of the children while taking account of the practical obstacles and additional expense associated with visitation.
Procedural Management of Interstate Custody Cases
In addition to the personal and practical issues associated with a long-distance custody case, litigating custody across state lines also raises procedural and jurisdictional issues. Fortunately, Illinois and 48 other states have simplified these issues by adopting the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This statute provides clear answers to common questions like “Which state has jurisdiction in an interstate custody case?” and “How can I enforce a custody order against my former spouse who has moved out of state?”
But, “clear” doesn’t always mean simple, and it’s easy for someone inexperienced with interstate custody matters to make a mistake. For example, you might assume that the state in which the child lives at the time of filing has jurisdiction over custody proceedings, but that isn’t always true. The child’s “home state” generally has jurisdiction, and that’s the state where the child has lived for at least six months immediately preceding the filing. If one parent has recently moved the child out of state and the other remains in the state where the child previously lived, the original state may retain jurisdiction.
Sometimes, that won’t make sense, even though one parent still lives in the state. In that situation, the “home state” court can decline to exercise jurisdiction, allowing the proceeding to move forward in a more appropriate court. Other courts may also have jurisdiction in special circumstances, such as to enter temporary orders in an emergency situation. The upshot is that while the UCCJEA makes a very messy and potentially conflicting system manageable, successfully navigating an interstate custody proceeding requires significant substantive and procedural knowledge.
Enforcement by Out-of-State Courts
One key benefit of the UCCJEA is that the statute requires other states that have adopted it to recognize and enforce child custody orders of other states, assuming that the ordering state had appropriate jurisdiction. This includes enforcement of out-of-state visitation orders. The statute even provides for registration of the out-of-state custody order in advance of any conflict and allows for direct communication between the courts.
These provisions are intended to make it easier to enforce a custody order, even if one parent is outside the state with jurisdiction over the custody case. And, they do. However, taking full advantage of provisions like the opportunity to register the court order requires following specific procedures. It may even depend in part on ensuring that appropriate language is included in the custody order. And, failing to respond to registration of an order in a timely manner could cut off your opportunity to contest the enforceability of the order at a later date, when a conflict arises.
If you and your child’s other parent live in different states and are embarking on a divorce or other custody proceeding, it’s critical that you have complete and accurate information about jurisdiction and how to ensure that your rights are protected as you move forward. You can start gathering that information with a consultation with one of our attorneys.