Lawyers representing survivors of intimate partner violence or protecting parents of abused children must know and understand child custody interstate jurisdiction issues.1 Scenarios that lawyers may need to address include: 1) the survivor wishes to relocate with the child either before or after an initial custody determination; 2) the survivor has fled with the child to Louisiana; and 3) the survivor has fled from Louisiana to a state of refuge and the abusive former partner files to force the child’s return to Louisiana.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)2 applies to all “child custody proceedings” in which legal custody, physical custody, or visitation is at issue.3 A “child custody proceeding “includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from family violence, in which the custody or visitation issue may appear.”4 In domestic violence cases, interstate jurisdiction issues typically arise when a victim moves out of state to get away from an abusive former partner. If a victim relocates to a new state but is made to litigate contentious custody issues in the first state, her safety and stability may be compromised. In these cases, lawyers may be called upon to represent survivors who need help asking Louisiana courts to either accept or decline jurisdiction under the UCCJEA’s domestic violence provisions. The UCCJEA includes important protections for domestic violence victims and their children that can help lawyers advocate for them in these circumstances.
The UCCJEA’s inconvenient forum and emergency jurisdiction rules include protections for victims who flee the child’s “home state” to escape violence.5 Under the UCCJEA, a child’s “home state” has jurisdiction to decide custody. Home state is defined in La. R.S. 13:1813 as “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.” Once Louisiana makes an initial child custody determination as the “home state,” it has exclusive, continuing jurisdiction until it determines that neither the child, nor the child and one parent, have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships.6 In some cases, Louisiana will be the home state and the victim may need to establish or protect its status as such. In other cases, Louisiana may be the home state, but the victim instead needs help asking Louisiana to decline to exercise its continuing jurisdiction in favor of a refuge state. Alternatively, Louisiana may be the refuge state, not the home state, and a victim needs help establishing temporary emergency jurisdiction for protection here.
- 1For additional discussion of interstate child custody issues, see Section 4.10 and Section 4.11 of this manual’s chapter on family law.
- 2La. R.S. 13:1801–1842.
- 3La. R.S. 13:1802(4).
- 4Id.
- 5See Stoneman v. Drollinger, 64 P.3d 997, 1001–02 (Mont. 2003); Kovach v. McKenna, 2011-C-0228 (La. App. 4 Cir. 4/1/11) (unpublished writ opinion). In Kovach, the appellate court reversed a trial court’s denial of a motion to decline its home state jurisdiction in favor of the family violence victim’s refuge state. In its opinion, the Kovach Court found that the “domestic violence and residence of the child in another state for more than six months predominates over all other considerations in La. Rev. Stat. Ann. § 13:1819.”
- 6La. R.S. 13:1814(A)(1). Continuing jurisdiction also ends when neither the child, the child’s parents nor any person acting as a parent reside in Louisiana. La. R.S. 13:1814(A)(2).