Which State Decides?

More and more often, the parties to a custody issue are in different states or move during the early stages of a custody dispute before litigation begins.  In such situations, the question often arises as to which state will determine the custody issues.  These issues are governed in a primary manner by the Uniform Child Custody Jurisdiction and Enforcement Act.

The primary focus of the UCCJEA is the home state of the child.  This term is described as follows:

"Home state" means 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. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned.

O.C.G.A. § 19-9-40 (7).

For Georgia to exercise jurisdiction over a child custody proceeding, one of the following must be shown:

1. Georgia was the home state of the children at the time the action was commenced
2. Georgia was the home state of the children within the six months preceding the commencement of the action and the children are absent from the state because of removal or retention by a contestant and a contestant continues to live in this state;
3. No other state would have jurisdiction under (1) or (2) and it is in the best interests of the child for Georgia to assume jurisdiction because the child and his parents or the child and at least one contestant have a significant connection other than mere physical presence and there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.
4. the child in this state and has been abandoned or is need of emergency protection from mistreatment or abuse.
5. No other state would have jurisdiction under 1, 2, 3, 4, or 6 or another state has declined jurisdiction in favor of Georgia and it is in the best interests of the child for Georgia to exercise jurisdiction.
6. Georgia has continuing jurisdiction.

These provisions of the UCCJEA are given further enforcement by the Federal Parental Kidnapping Prevention Act which tracks much of the language as to the proper court to determine custody. 

It has been held that a custody determination by one state based upon "significant connection" jurisdiction when another state has home state jurisdiction is not entitled to full faith and credit under the FPKPA. Matter of Marriage of Harris, 883 P.2d 785, 20 Kan.App.2d 50 (1994).  This is a significant limitation on the authority of a state court to ignore the provisions of the UCCJEA.

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modified: June 08, 2004