Columbus Interstate Divorce Lawyer | Franklin County Interstate Family Law Attorney

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.