Sunday, April 24, 2005

What State's Family Court has Jurisdiction Over My Divorce and Custody Issues?

Answer: Jurisdiction over a divorce (or other family court proceeding) and jurisdiction over children who may be part of an anticipated/ongoing/previous divorce/modification are often different. For example, under Arizona's family law statutes, Arizona family courts may assume jurisdiction over a divorce when one party to the divorce has been domiciled in Arizona for 90 days. However, except under limited circumstances, including certain emergencies, the Arizona family court will not have jurisdiction over children until they have resided in Arizona for 6 months. Arizona statute provides the 90-day domicile requirement in the case of divorce jurisdiction. The Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA) controls the issue of jurisdiction over children. The UCCJEA is a "uniform law," meaning that a national committee wrote it with the expectation that each state would add it to its own family law statutes, which Arizona did. The UCCJEA sets forth various factors that a family court must use in determining child custody jurisdiction, the strongest factor of which is the six month residency requirement. The reason behind creating the UCCJEA and its predecessor laws is to prevent what is known in the courts as "forum shopping." Forum shopping simply means trying to find a court that has a more favorable set of rules, statutes or judges than another. In times past, it was not unusual for the non-custodial parent of a child to take the child to another state without permission, make up outrageous allegations and thus convince the new state to order custody to the abducting parent. This created multiple problems including encouraging child abductions and having two contradictory court orders, also known as a big mess. The UCCJEA and its federal counterpart, the Parental Kidnapping Prevention Act (PKPA), are attempts to address these common issues of family law.

As a practical or perhaps impractical matter, the above information makes it possible for one court to have jurisdiction over a divorce based on Arizona's 90-day family law domicile rule and another state's family court to have jurisdiction over the children of that same divorce. Thus, a couple could be divorced by one state's courts and another state could have jurisdiction over child custody and visitation. Who should have jurisdiction over the child support? Usually the state in which the parent paying child support resides.

Keep in mind that once an Arizona divorce is filed and served, a court order called a Preliminary Injunction goes into effect. (Under Arizona family law, the Preliminary Injunction is effective upon the initial petitioner upon filing and upon the other spouse (the "Respondent") upon service). Among other things, this Injunction states that neither party may remove the children from Arizona without permission. However, if the children are removed prior to the divorce being filed, a number of factors come into play. Usually the strongest factor is the length of time that the children have resided in each place. Each situation is different, however, which is why we have family court judges and Arizona famliy lawyers to help sort things out. Always consult an attorney on these issues because a bad decision can result in a criminal penalty!

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

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Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

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