Nolo's Essential Guide to Divorce - Emily Doskow [81]
Interstate Custody Fights
If parents live in different states, which court decides custody issues? The answer comes from a law called the UCCJEA, which most states have adopted. It's designed to do two things: prevent parental kidnapping, and give information about where children in a divorce are living, so that the court knows whether the children are under the court's authority (jurisdiction). If your spouse moves during the course of your divorce and tries to file custody papers in another state, you'll need a lawyer-the law about which state gets to decide custody issues is complex and the decision is important, because once a state has jurisdiction over a child custody dispute, it's hard to move it to another state.
If you want to learn more about these rules, a good place to start is a publication by the Department of justice, which you can find at www.ncjrs .gov/pdffilesl/ojjdp/189181.pdf
If you want the court to issue a temporary custody order while your divorce is pending, you'll probably move quickly on to a motion hearing (described in detail in Chapters 3 and 5). Either you or your spouse will file a motion stating what you want, and the other will respond, arguing for something different. You may also submit declarations-written statements by you and possibly from witnesses, giving the judge facts that you think support your position. You'll then go to court for a hearing, where the judge will make a temporary order. That order will be binding until you either agree to change it or have a full trial, after which the judge will make a permanent order.
Factors a Judge May Consider in a Custody Dispute
Nearly all states use a "best interest of the child" standard in disputed custody cases. This is a rather amorphous standard, and one that lends itself to judges' subjective beliefs about what's best for children. There are some factors, though, that you can expect a judge to consider.
The Evolution of Custody Rules
These days, most judges believe that it's good for children to have ongoing and regular contact with both of their parents. But it hasn't always been that way. Back in the 1800s, fathers almost always got custody, because of their role as head of the family. In the early 20th century, the preference shifted to mothers, especially in cases involving very young children (the "tender years" doctrine). That rule prevailed for many years, but as more women entered the workforce and family structures and roles shifted, some judges began to focus on the children's best interests without a preference for either parent. Still, many courts favor mothers in custody cases. In the last couple of decades, many fathers have begun arguing for greater rights to custody, and another shift may be in store.
Age of the children. Although the "tender years" doctrine is officially out of fashion, some judges still believe that younger children should live with their mothers, especially if the mother has been the primary caregiver. (Certainly, a nursing baby will do so.)
Each parent's living situation. There's a bit of a chicken-and-egg dilemma surrounding the issue of where parents live and how that affects custody. Sometimes, the parent who stays in the family home is granted custody of the children because it allows the children stability and continuity in their daily lives. Sometimes, the parent with custody is awarded the family home, for the same reason. If you are crashing in your best friend's guest room while you get back on your feet after the divorce, don't expect to get primary custody of your kids.