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Law Offices of Virginia C. Cornwell

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Ohio Interstate Divorce Attorney series on Divorce part 15: Interstate Divorce and Child Custody

February 14, 2011

This is the 15th installment in a series by a Ohio Interstate Divorce and Custody Attorney about the process and options for ending your marriage in Ohio, and about Ohio divorce laws. This article discusses interstate child custody jurisdiction.  Interstate child support and enforcement will be discussed in another article. You can view other articles in the Divorce in Ohio series by clicking any of the links at the end of the article.

 

OHIO CHILD CUSTODY JURISDICTION AND DIVORCE:

What you need to know about The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and Subject Matter Jurisdiction

In the previous article we discussed personal jurisdiction, and how you need it if you want someone to pay money.  Subject matter jurisdiction is different.  It can never be waived.  It is one of the ONLY issues that can be raised on appeal for the first time.  Why is it so important to divorce and custody cases?  Because one state, and one state only, has subject matter jurisdiction to make child custody orders under the UCCJEA.  Either a state has it, or it does not, and clever little tricks like trying to file court papers first or serve someone while they are in a state will NOT give a state subject matter jurisdiction.  It is one of the few areas in Ohio Family Law where the Trial Court does NOT have broad discretion, and the law is clear.  The Court of Appeals will actually get involved to stop a trial court from exercising subject matter jurisdiction improperly.

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Why is child custody so different?  Because there is a federal law about child custody.  For the most part, the federal government leaves custody issues to the state, and only steps in on matters which effect the nation as a whole.  There is a federal law called the Parental Kidnapping Prevention Act that was designed to keep parents from taking the children from their home, moving to another state that they would like to live in and filing court papers in the new state to obtain jurisdiction.  The Parental Kidnapping Prevention Act (PKPA) gives clear instructions regarding which state has jurisdiction over child custody matters.

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The PKPA says that ONLY courts with proper jurisdiction under the PKPA can make orders regarding custody that have to be obeyed outside of that state.  In legalese, only states that have jurisdiction under the PKPA can make custody orders which are entitled to “full faith and credit” in all other states.

Ohio, like most states in the U.S., has adopted the UCCJEA.  The UCCJEA is a treatise, or a scholarly writing, that has been made part of the law in the states that have adopted it.  To understand the UCCJEA in Ohio, you must look at the statutes in the Ohio Revised Code that made the UCCJEA the law in Ohio.  The UCCJEA was adopted in Ohio to bring Ohio custody law in compliance with the PKPA.  In a nutshell, both the UCCJEA and the PKPA require:

  • 1) generally, initial custody determinations must be made in the State where the Child has lived for the 6 months immediately before the filing of the court paperwork (home state jurisdiction);
  • 2) once a custody order is made by a state with proper jurisdiction under the UCCJEA, then that state has continuing exclusive jurisdiction (that state keeps jurisdiction unless both parents and all the Children leave that state); and
  • 3) any state can exercise emergency jurisdiction, but that emergency jurisdiction only lasts as long as the emergency, and then the State with continuing exclusive jurisdiction (if a custody order already exists from that state) or home state jurisdiction (if no custody order is made yet in the home state) will assume jurisdiction.  Emergency jurisdiction is temporary, and dragging out the court proceedings over the alleged emergency for six months or more won’t change anything.

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Now, if you really think about it, both the PKPA and the UCCJEA were made because of all the things people used to do to try to give a state jurisdiction that it shouldn’t have.  These laws both contemplate and defeat “custody grab” scenarios such as:

  • leaving one state and filing court papers shortly after arriving in a new state (haven’t lived in the new state six months)
  • filing “emergency jurisdiction” motions and then hoping that keeping the case in court six months will keep jurisdiction in the wrong state (if a custody or divorce/custody or similar case has been filed the Child’s home state, the case WILL end up back in that home state.
  • trying to lure the other parent into the new state to serve them with paperwork (can’t get subject matter jurisdiction this way)
  • filing papers in the wrong state in the hopes the other parent cannot afford the airfare to appear (Ohio law can require the parent filing in Ohio to pay travel expenses for the other parent to come fight it)
  • Hiding the Child for six months or kidnapping the Child
  • filing a case citing the “general jurisdiction” of the Juvenile Court over a child “who is not a ward of another court of this state”.  Read the statute closely – that statute presumes that Ohio already has subject matter jurisdiction over custody under the UCCJEA.  In addition, Ohio Revised Code 3127.15(B) clearly and unequivocally states: Division (A) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

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To learn more, see our other articles on the UCCJEA.  You may also be interested in some of our other divorce articles:

  • Part 1: Conciliation or Legal Separation
  • Part 2: Dissolution or Uncontested Divorce
  • Part 3: Reasons to Choose Divorce
  • Part 4: Restraining Orders
  • Part 5: Where will you live?
  • Part 6:Paper Work
  • Part 7: Health Insurance
  • Part 8: Attorney Fees
  • Part 9: 5 Dirty Divorce Tricks
  • Part 10: 5 More Dirty Divorce Tricks
  • Part 11: Columbus Ohio Divorce Jurisdiction
  • Part 12: Columbus Ohio Professional Practice Divorce
  • Part 13: Military Divorce Jurisdiction – What State to File In
  • Series on Divorce Part 14: Interstate Divorce
  • Series on Divorce Part 15: Interstate Divorce and Child Custody
  • Series on Divorce Part 16: Psychological Evaluations in Ohio Divorce and Custody Cases
  • Series on Divorce Part 17: Divorce and Medical Practice Owners
  • Series on Divorce Part 18: Can you get a divorce or dissolution in Ohio while pregnant?
  • Series on Divorce Part 19: Separate Property
  • Series on Divorce Part 20: Average Cost of a divorce in Ohio

DISCLAIMER – Read it, it’s stuff you need to know!

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OHIO CHILD SUPPORT GUIDELINES CALCULATOR

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READ THIS BEFORE YOU READ OUR WEB SITE

1. This site applies to the state of Ohio and matters of federal law only.
2. The info on our site is not legal advice because we don't know the facts of your case. If you want legal advice, you must meet with a lawyer.
3. Reading this website or sending documents to us does not create an attorney-client relationship and information or documents you give us will not be kept confidential unless you call us, tell us who is involved in your case, and let us do a conflict of interest check.

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Ohio Child Support Guidelines Calculator

Ohio Child Support Guidelines Calculator

Blogroll

  • Columbus Ohio Divorce Lawyer

Read this before you read our website

1. This site applies to the state of Ohio and matters of federal law only.

2. The info on our site is not legal advice because we don't know the facts of your case. If you want legal advice, you must meet with a lawyer.

3. Reading this website or sending documents to us does not create an attorney-client relationship and information or documents you give us will not be kept confidential unless you call us, tell us who is involved in your case, and let us do a conflict of interest check.

AREAS OF PRACTICE

  • Annulment of Marriage
  • Appeals
  • CERTIFIED SPECIALIST – OSBA Certified Family Relations Specialist
  • Child Support
  • Columbus Ohio Collaborative Family Law
  • Contempt of Court
  • Custody
  • Dissolution of Marriage
  • Divorce
  • Divorce & Alimony
  • Divorce & Assets
  • Divorce & Business Owners
  • Divorce & Child Support
  • Divorce & Custody
  • Divorce & Professional or Medical Practice Owners
  • Family Law
  • Father's Rights
  • Franklin County & 88 Ohio Counties
  • Grandparents Rights
  • Legal Separation
  • LGBT Family Law, Divorce, Custody
  • Military Divorce
  • Mother's Rights
  • Moving & Relocation
  • Ohio Collaborative Divorce
  • Parental Alienation
  • Paternity
  • Post-Decree Modifications
  • Prenuptial & Antenuptial Agreements (Prenup)
  • Shared Parenting
  • Temporary Orders in Ohio
  • Uncontested Divorce
  • Unmarried & Never Married Parents
  • Visitation
(614) 225-9316

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From our downtown Columbus offices we serve clients throughout Ohio. We also service areas such as Gahanna, Bexley, Blacklick, Columbus, Dublin, Hilliard, Lancaster, Westerville, New Albany, Pickerington, Powell, Upper Arlington, Worthington, Lancaster, Franklin County, Fairfield County and more. In addition, we serve clients in several Ohio Counties, including, but not limited to: Franklin County, Delaware County, Licking County, and Fairfield County.

Ohio State Bar Association Certified Family Relations Specialist

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  • Adoption (4)
  • Alimony or Spousal Support (3)
  • Annulment (5)
  • Appeals (3)
  • Child Custody (39)
  • Child Support (15)
  • Civil Protection Orders & Domestic Violence (3)
  • Collaborative Divorce (1)
  • Contempt & Enforcement (12)
  • Dissolution , Amicable Divorce, No Fault Divorce (15)
  • Divorce (45)
  • Emergency Custody and Supervised Visitation (3)
  • Father's Rights and Paternity (12)
  • Grandparents Rights in Ohio (14)
  • Guardian ad Litem (3)
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  • Interstate Family Law (2)
  • Jurisdiction and Venue (6)
  • Legal Separation (5)
  • LGBT Family Law (6)
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  • Military Family Law (3)
  • Mothers' Rights (2)
  • Moving and Relocation (10)
  • Ohio County Visitation Schedules (86)
  • Parental Alienation (2)
  • Post Decree Cases (6)
  • Prenuptial Agreements or Antenuptial Agreements (3)
  • Psychological Evaluations (2)
  • Shared Parenting (2)
  • Step-Parent Adoption (1)
  • Tax Issues (1)
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  • Visitation (6)

Recent Posts:

  • Appealing Your Ohio Family Law Judgment Entry
  • The Ohio LGBT community’s new right to marry also means the right to step-parent adoption
  • Ohio LGBT Shared Custody Agreements: Get it in Writing!
  • Columbus Ohio Same Sex Divorce Lawyer & Prenuptial Agreement Lawyer
  • Same Sex Divorce in Ohio: U.S. Supreme Court Strikes Down Bans on Same Sex Marriage

From our downtown Columbus offices we serve clients throughout Ohio. We also service areas such as Bexley, Blacklick, Columbus, Delaware, Dublin, Gahanna, Hilliard, Lancaster, Marysville, Westerville, New Albany, Newark, Pickerington, Plain City, Powell, Upper Arlington, Worthington, Lancaster, Zanesville and more. In addition, we serve clients in all Ohio Counties, including, but not limited to: Franklin County, Delaware, Licking, Logan, Fairfield, Union, Marion, Muskingum, Pickaway, Ross, Richland, Madison, Morrow, Knox, and more.

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Law Offices of Virginia C. Cornwell
408 Emory St
Columbus , OH , 43230
(614) 225-9316
Latitude: 40.00734
Longitude: -82.84535