Which state has jurisdiction to hear your dispute about child custody or parenting time?   This question arises frequently in our practice.   We live in a mobile society.  Parents and children relocate in different states. 

Some clients want to know where they should file their initial child custody litigation.  Others need to modify an already existing child custody decree or parenting plan from another state.

Uniform Child Custody Laws

Many lawyers and even judges believe that jurisdiction over child custody proceedings lies in the state where the children have lived for the past six months.  That is a gross oversimplification.  To accurately determine which state will hear your child custody proceeding, you must know the details of the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). 

Twenty seven states, including Kansas, have enacted the UCCJEA.  Missouri uses an earlier version of the law known as the “Uniform Child Custody Jurisdiction Act,” or “UCCJA.”

The Uniform Child Custody Jurisdiction Enforcement Act governs jurisdiction over all child custody proceedings.  A “child custody proceeding" means a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence.  (Kansas Statute 38-1337.  For Missouri’s version, see Missouri Revised Statute 452-445).

Initial Child Custody Jurisdiction

Initial custody jurisdiction was determined at the time of the filing of the petition leading to the first custody determination.  Marriage of McNabb, 31 Kansas App. 2d 398; 65 P.3d 1068 (2003)  “Child-custody determination” means a judgment, decree or other order of a court providing for the legal custody, physical custody or visitation with respect to a child.  Kansas Statute 38-1337(4)   Events after the filing of the petition cannot confer jurisdiction.  Marriage of Ruth, 32 Kan. App. 2d 416; 83 P.3d 1248 (2004)

Physical presence or personal jurisdiction is not sufficient for determining child custody.  Kansas Statute 38-1348(c)  Rather, jurisdiction for an initial custody determination ordinarily rests in the child’s “home state.”  Kansas Statute 38-1348(a)(1)  The child’s home state is the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding.  Kansas Statute 38-1337(8)

If the child has no “home state,” or if the home state declines jurisdiction because another state is a more appropriate forum, then jurisdiction will be conferred to the state with significant connections other than mere physical presence.  Kansas Statute 38-1348(a)(2)(A)   The state with significant connections should also have substantial evidence concerning the child’s care, protection, training, and personal relationships.  Kansas Statute 38-1348(a)(2)(B)

Exclusive, Continuing Jurisdiction

A court which made an initial custody determination retains exclusive, continuing jurisdiction as long as the child or either parent reside in the state.  Kansas Statute 38-1349(a)(2)  That court forfeits exclusive, continuing jurisdiction when neither the child nor a parent has a significant connection with the initial state and substantial evidence is no longer available in the initial state.  Kansas Statute 38-1349 

Jurisdiction to Modify Custody

A court may not modify a custody determination of another state unless the new forum meets certain conditions.  The court with modification jurisdiction must have custody to make an initial custody jurisdiction.  Kansas Statute 38-1350   For example, the state may have become the child’s “home state” if the child and a parent have lived in the state for the previous six months.   Kansas Statute 38-1348(a)(1) ;   Kansas Statute 38-1337(8) 

Even if the new state would have initial jurisdiction, the court will not attain modification jurisdiction unless the court of the other state determines that it no longer has exclusive, continuing jurisdiction; or if the new court is a more convenient forum for jurisdiction; or if the court of the state with modification jurisdiction determines that the child and neither parent resides in the state of initial jurisdiction.  Kansas Statute 38-1350

“Inconvenient forum” refers the best interest of the child, not the convenience of the litigants.  The following factors may prove relevant to determining an inconvenient forum: (1) Occurrences of domestic violence and the state best suited to protect the victim or child; (2) How long the child resides outside the state; (3) The distance between courts competing for jurisdiction; (4) Relevant financial circumstances of the parties; (5) Agreements between parties concerning the jurisdiction of a state; (6) Convenience of evidence required to resolve pending litigation; (7) Abilities of the court to expedite procedures that will present necessary evidence; and (8) Court familiarity with facts and issues in the pending litigation.  Kansas Statute 38-1354

A court shall also have jurisdiction if the child and parents no longer live in the other state where initial jurisdiction existed.   Kansas Statute 38-1350

Temporary Emergency Jurisdiction

If a child, present in a particular state, experiences abandonment, or threats of mistreatment or abuse within that particular state, temporary emergency jurisdiction may arise where the child is physically located.   Kansas Statute 38-1351   The jurisdiction persists only until a state with more competent jurisdiction issues a custody determination.  Kansas Statute 38-1351  However, if another state never asserts jurisdiction, then the orders in this state may become final.  Kansas Statute 38-1351(b)

To reach the author, call Scott Wasserman at (913) 438-4636,

or send e-mail to Scott@yourchild1st.com .

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The information on this site is only for general educational purposes, and not for legal advice. Laws change, and their application may vary significantly depending on your circumstances. If you need legal advice, you must consult an attorney.  The choice of a lawyer is an important decision and should not be based solely upon advertisements.