What is Home State Jurisdiction?

In the world of Child Custody cases, there are several terms that are crucial to be very familiar with, and understand clearly. The first of these is HOME STATE – it means where has the child been residing for the period JUST BEFORE the case was filed.

It is a six month window and it means for the preceding six months where has the child been living. If the child is under six months of age, then it is the time from birth to the date of filing.

Cases turn on these little issues, like how much time the child has been in a particular state. Last year our lawfirm had an interstate child custody case, we represented the father from Texas. Mother had left Texas with the child and returned to Los Angeles, California, after 5  and a 1/2 months in Texas.

By the time the courts heard the case, under Texas’ interpretation, the clock continued to run on the six months because mom fled the state without dad’s permission and they were willing to exert jurisdiction. In California the court kept jurisdiction because the child had not been in Texas the full six months before she was returned to Los Angeles, which was the prior Home State Jurisdiction.

The case is ongoing, with BOTH courts saying they have jurisdiction. The parties eventually agreed that dad should have custody, but technically, it’s the California case that is granting dad custody.


HERE’S THE TEXT OF THE PARENTAL KIDNAPPING PREVENTION ACT: The short version is that a parent can only kidnap a child if they are acting in contradiction to a valid court order that gives either Joint Legal and Physical Custody to the other parent. This is a highly complex area of the law, and no one should do anything without speaking to an attorney,  who is experienced in both International and Interstate Jurisdictonal Family Law issues.

Parental Kidnapping Prevention Act
28 USC Sec. 1738A

28 § 1738A. Full faith and credit given to child custody determinations
(a) The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another State.

(b) As used in this section, the term -

(1) ‘child’ means a person under the age of eighteen;

(2) ‘contestant’ means a person, including a parent, who claims a right to custody or visitation of a child;

(3) ‘custody determination’ means a judgment, decree, or other order of a court providing for the custody or visitation of a child, and includes permanent and temporary orders, and initial orders and modifications;

(4) ‘home State’ means the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons. Periods of temporary absence of any of such persons are counted as part of the six-month or other period;

(5) ‘modification’ and ‘modify’ refer to a custody determination which modifies, replaces, supersedes, or otherwise is made subsequent to, a prior custody determination concerning the same child, whether made by the same court or not;

(6) ‘person acting as a parent’ means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody;

(7) ‘physical custody’ means actual possession and control of a child; and

(8) ‘State’ means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or possession of the United States.

(c) A child custody determination made by a court of a State is consistent with the provisions of this section only if -
(1) such court has jurisdiction under the law of such State; and

(2) one of the following conditions is met:

(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;

(B) (i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;

(C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse;

(D) (i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or

(E) the court has continuing jurisdiction pursuant to subsection (d) of this section.
(d) The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.

(e) Before a child custody determination is made, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated and any person who has physical custody of a child.

(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if -

(1) it has jurisdiction to make such a child custody determination; and

(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.

(g) A court of a State shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination.

Posted in Law

Interstate Custody Cases Start with a Phone Call

This is from the Huffington Post,

“Crai, this is [your son's mother], I’ve decided to keep [our son] with me. He is enrolled in an excellent school. He is very happy with my decision. We’ll call you soon. He loves you.”

Adrenaline suffocated me, confirmation of my deepest fears exacerbated by anger that my voice as primary parent was so quickly assumed by my son’s mother. Feeling helpless, I vented my anger through several voicemails, though no live conversations took place during those first sleepless days.

Who notices state lines when driving throughout the USA? Perhaps we point out a welcome sign to our kids or realize our destination is within reach. But a state line becomes the border between North and South Korea when an interstate custodial dispute flares up. Suddenly, a welcome sign provokes a cold war.

This is what happens, as Crai notes, when a parenting plan is not put in place properly with court orders. This is from the first installment of his series of columns.


The Hague Convention on the Civil Aspects of International Child Abduction

International Child Custody Cases are complex cases involving the laws of multiple states. They require lawyers that have the vision to see the whole picture, and not get caught up in the minute details that derail cases.

Hague convention cases cross the topics of Jurisdiction, State Law, Federal Law, International Law, Civil Law, Family Law, Human Rights and Civil Procedure.

Lawyers who practice in this area must keep in mind all of the various factors. Pisarra & Grist, attorneys at law, are located in the greater Los Angeles area of California, and serve clients throughout Los Angeles, Ventura, Riverside and Orange County. Our local clients come from communities such as Santa Monica, Pacific Palisades, Malibu, Venice, the greater Los Angeles metropolitan area, Beverly Hills, the San Fernando Valley, Glendale, Pasadena, Torrance, Redondo Beach, Long Beach, Huntington Beach, Manhattan Beach, Hermosa Beach, Newport Beach, Santa Clarita, Valencia, Burbank, Irvine, Thousand Oaks and Santa Ana.

Our international cases have involved Norway, Greece, France, Spain, Mexico, Canada and Brazil.