My Ex is leaving the state with the children
Can she/he use the uniform child custody jurisdiction act?
We can’t begin to tell you how many times we hear this sentence: “My Ex is leaving the state with the children.” Most parenting plans and settlement agreements include language that requires a custodial parent to notify the noncustodial parent thirty to sixty days prior to any intended move, especially one out of state. When a custodial parent seeks to leave the state they are essentially severing the consisting and regular relationship the noncustodial parent has with the children.
In most instances, the noncustodial parent has very limited time with the children and a distant move would make visitation impossible. Because of this, a move out of state is a situation in which the courts will hear a modification petition for a change of custody; and if custody is not changed then visitation will definitely need to be changed. If you live in the Atlanta area you can book your free consultation with Attorney Whitworth
If the court decides not to change the custodial arrangement and finds the custodial parent has good reason to move and it is in the best interest of the children, the court will adjust the visitation schedule to accommodate the noncustodial parent. This usually involves extended visitation during the summer and all school breaks. The visitation will not be as consistent as when the parents lived in the same community but there will be longer periods provided when school is not in session.
If your Ex is leaving the state with the children you need to first file a partition to modify visitation and/or custody.
Visitation will also be adjusted depending on which parent takes on the burden of transportation. If the parents agree to share this burden then it may not be adjusted but if one parent is burdened with driving or flying to a location then the cost of this transportation will be considered in the monthly child support obligation.
However, if the parent refuses or is not obligated to notify the other parent and simply leaves or has left some time ago the issue is a bit more complicated. State legislatures have adopted the UCCJEA, which is the Uniform Child Custody Jurisdiction and Enforcement Act. What this statute does is provide guidelines in issues of modifications of custody in which the custodial parent has relocated. Time is essential in these matters as the home state of the child and the court of the last jurisdiction are determinative in the litigation.
What does Georgia Law state about an ex leaving the state with the children?
The home state of the child is the state in which the child lived for six months prior to filing an action for modification. What this means is that if there is a move and within six months you file an action for modification, Georgia will still be the home state of the child and the courts in Georgia will maintain control over the custody issue. However, it is essential that one parent, usually the one filing the action, has connections with the state of Georgia. In essence, you must still reside in Georgia.
The UCCJEA further provides that the court of the last jurisdiction will maintain jurisdiction. This means that if the Georgia court gave the last order involving issues of custody and visitation then the Georgia court maintains the authority to enforce or modify that order. The issues arise if one party waits too long to bring an action and the home state has changed. Yes, Georgia may be the last court of jurisdiction, but is now no longer the home state of the child. Often the courts must way the connections with the state of Georgia when making this determination. This can get very cumbersome as the parent in the new state commonly files their own action and domesticates an order in the new state of residence. Most courts will rule on the issue of jurisdiction when the issues are obvious; however, often courts literally contact one another when deciding these issues.
The UCCJEA does allow for special circumstances that involve conditions that require an emergency ruling. This usually involves cases of abuse in which one parent takes or refuses to return another the child to the other parent. If the court that does not have jurisdiction finds that there is significant abuse or harm to the child this court can issue a temporary ruling in their state. The issue will have to be resolved after the temporary period and then you arrive at a situation discussed above in which the courts must determine which jurisdiction will move forward with the matter.
Disturbingly I often see this facet of the act misused by parents. They will take a child to another state and seek and ex parte hearing claiming significant abuse. Many judges will hear these cases seeking to protect the children, but the problem is that ex parte means one party, the other side will not be present to defend their position. They simply get a notice that custody has been temporarily changed and the new jurisdiction is proper, which instantly complicates matters.
Contempt of Court
Remember, contempt will always be heard in the court that issued the order. So if a party is violating the visitation schedule or the order you always have the ability to seek relief from the court that issued the original order. So if weekend visitation is being denied and the pickup or drop off location is not realistic contempt is always available.
The simplest way to avoid the cost and time of complicated jurisdictional litigation is to be proactive in any issue that could hinder the relationship with your child. Often people agree to moves without court orders or modifications and soon discovered they need to go to another state to fight for their rights. Be proactive, get legal advice and take action.
The Law Offices of Sean R. Whitworth has seen many scenarios involving modifications of child custody and visitation because of an out of state move by the custodial parent. If you live in Cobb County or Atlanta area contact us today.
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