by Richard A. Marcus, Esq.


Divorce in general is a state law issue. Not surprisingly, each state has its own laws regulating divorce. We live in a highly mobile society and it is very easy for people to move from state to state. It is not uncommon for parents and their children to move from state to state. A child may be born in New York and move to California with one of his parents before any divorce action is ever started. A lot of the time, one parent will move out of state and then seek to bring divorce proceedings entailing custody. In such a case, a question will often arise as to where the divorce action should be filed and in legal terms, which court has jurisdiction over the custody issues.

In an attempt to minimize the possibility of inconsistent rulings amongst the various state courts, a uniform act was drafted by the National Conference of Commissioners on Uniform State Law in 1997. Since then, it has been adopted by 48 states, the District of Columbia, Guam and the Virgin Islands. That act is called The Uniform Child Custody Jurisdiction and Enforcement Act, or “UCCJEA.” Massachusetts and Vermont are the only two states that have not adopted the UCCJEA.

The UCCJEA vests "exclusive [and] continuing jurisdiction" for child custody litigation in the courts of the child's "home state," which is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding (or since birth for children younger than six months).

The UCCJEA provides uniform rules for the courts to consider so that at least in theory, only one court is making custody orders. In practice however, custody proceedings may be pending in two different states at the same time, or even two different counties within the State of California.

Problems arise because the UCCJEA permits a state which does not otherwise have jurisdiction to enter a temporary emergency order, if the child is in danger and needs immediate protection. After issuing such order, the state court is supposed to determine if there is an existing custody order from another state in effect. If there is an existing order, the emergency court must allow a reasonable time period for the parties to return to the state having jurisdiction, and argue the issues to the court with jurisdiction.

If there is no previous child custody order in existence, the emergency court's order will remain in effect until a determination is made in a court having "home state" jurisdiction over the child. If no determination is made, and the emergency court's state becomes the home state of the child, the emergency order becomes a final determination of custody. Courts are supposed to cooperate so that even if two proceedings are pending, only one court will wind up making custody order determinations.