4.10.5 Home State Jurisdiction
4.10.5 Home State Jurisdiction aetrahan Mon, 06/26/2023 - 11:23La. R.S. 13:1813(A) provides the exclusive jurisdictional basis for a Louisiana court to make an initial child custody determination. Under La. R.S. 13:1813(A)(1), the child’s home state will have exclusive jurisdiction to make an initial child custody determination. Thus, the home state trumps all other states, even if the custody suit in the other state was filed first.
The home state is the state in which the child lived with a parent or a “person acting as a parent” for at least 6 consecutive months prior to the commencement of a child custody proceeding. Both the UCCJEA and Louisiana law define commencement as the filing of the first pleading in a proceeding.1 A “temporary absence” of the child, parent, or person acting as a parent when they are away from the home state does not take away from the computation of this 6 consecutive month period.2 In case of a child under 6 months old, home state means the state in which the child lived from birth with a parent or person acting as a parent.3 The Louisiana UCCJEA further extends this “temporary absence” window when the parent or person acting as a parent who has had to evacuate with the child due to a disaster and is unable to return to Louisiana for an extended period. Louisiana would still be considered the home state if they had lived in Louisiana for at least 12 consecutive months prior to the initial custody proceeding.4
The first step in any interstate custody dispute is to determine the home state, if any. Most cases should have a home state, and exclusive jurisdiction will rest with the home state. The home state will have initial jurisdiction, which will exist even if a custody determination has been made in another state.
The determination of home state status should be relatively easy. Each litigant’s first pleading should contain an affidavit that discloses facts relevant to the determination of UCCJEA jurisdiction. Possible issues may arise for cases that involve a child under 6 months old or a child’s temporary absences from a state. If a child was born in state A, lived there for 2 months with a parent, and then relocated to state B for 3 months, state A would be the home state because state A is the only state where the child lived continuously from birth.
While the UCCJEA does not define “temporary absence,” it can be argued that a temporary absence that is greater than 6 months (unless there is a disaster exception or a clearly defined reason for being away from the home state such as vacation, school, etc.) would divest Louisiana from being considered the home state. Clearly, the UCCJEA permits home state jurisdiction when the “temporary absence” is within the 6-month window of the custody proceeding. Other states’ courts have looked at whether a state was the home state at any time within the prior 6 months. Thus, for example, if the custody suit was filed on July 1, the issue would be whether the state was the “home state” on the prior January 1, when the temporary absence commenced.