Child Custody

Question 1

Jurisdiction over Initial Award of Child Custody

Answer 1

The child’s home state has jurisdiction to make an initial custody award. A state is a child’s home state if:

• The child has lived there with a parent for at least 6 consecutive months​; or
• The state was a child’s home state at some point during the last 6 months, the child is absent from the state, but a parent is still in the state.

If there is no home state, then a state that the child has a significant connection with and in which there is substantial evidence of the child’s well-being may exercise jurisdiction.

Question 2

Jurisdiction to Modify a Child Custody Award

Answer 2

The issuing state has continuing jurisdiction to modify a child custody award. Another state may modify if:

• No child or parent lives in the state;
• The child no longer has a significant connection in the state and there is no substantial evidence of the child’s well-being in the state.

Question 3

When may a court exercise temporary emergency jurisdiction?

Answer 3

A court may exercise temporary emergency jurisdiction in child custody cases if the child is physically present in the state and:

• The child has been abandoned; OR
• Jurisdiction is necessary to protect the child, a sibling, or a parent from abuse.

Question 4

What does a court consider when awarding custody and visitation?

Answer 4

The overriding factor is the best interests of the child. In addition, the court will consider:

1. The wishes of the parents;
2. The wishes of the child;
3. The child’s relationship with their parents and siblings;
4. The child’s adjustment to school, home, and community;
5. Which parent served as the child’s primary caregiver;
6. The mental and physical health of the parties.

Question 5

When will a court award sole custody?

Answer 5

In general, courts prefer to award joint custody, in part because parent’s rights enjoy constitutional protection. However, a court will award sole custody if there is strong evidence that sole custody is in the best interests of the child and granting visitation to the parent will result in harm to the child.

⇒ Notice the additional term: Granting visitation must actually result in harm to the child.

Question 6

What factors will a court consider when assessing relocation of a child?

Answer 6

A court will consider relocation is . . .

1. In the best interests of the child;
2. Motivated to benefit the family;
3. Not intended to interfere with the relationship with the other parent.

Question 7

What happens if a child is kidnapped, i.e., removed from the state by the noncustodial parent without the custodial parent’s permission?

Answer 7

If the child is kidnapped by the noncustodial parent, the custodial parent may enforce the custody decree in the other state. Under federal law, states must give full faith and credit to other states’ child custody orders.