“Does Virginia have jurisdiction over my custody and/or visitation matter?” The answer to this question is largely determined by the existence, or lack of, a prior Virginia custody/visitation order.
When there is NO Prior Custody/Visitation Order
If both parents and the child have always lived in Virginia, then it is an easy question. Virginia has sole jurisdiction. When one of the parties or children lives, or has recently lived, in another state, then the court needs to review both the Code of Virginia § 20-146.12 and the Virginia UCCJEA. The Supreme Court of Virginia said it best in Middleton V. Middleton, 227 VA. 82, 314 S.E.2d 362 (Va. 1984) when it noted that the UCCJEA:
was enacted to avoid jurisdictional competition and conflict with courts of other states in matters of child custody; to promote cooperation with courts of other states so that a custody decree is rendered in a state which can best decide the issue in the interest of the child; to assure that litigation over the custody of a child ordinarily occurs in the state that is most closely connected with the child and his family and where significant evidence concerning his care, protection, training, and personal relationships is most readily available; to assure that the courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state....
Id. at 92-93, 314 S.E.2d at 367.
Subsection A, 1 of § 20-146.12 notes that if the child currently lives in Virginia and has done so for the last six months, then Virginia will have valid jurisdiction. Furthermore, the Virginia UCCJEA, notes that if the child is younger than six months old, then the court will base its decision on whether the child was born in Virginia and has lived here since birth. Additionally, under s§ 20-146.12(a)(1), if the child has resided in Virginia for six months prior to the case being filed, but has relocated from Virginia into another state, then so long as one parent or guardian still lives in Virginia, then Virginia will take jurisdiction of the custody/visitation matter even if there is no prior Virginia order.
Virginia § 20-146.12 gives Virginia courts the authority to take jurisdiction over a custody case if the child moved from Virginia less than six months ago. One may find it odd that Virginia would take jurisdiction over a custody matter if the child no longer lives in Virginia. However, “[t]he purpose behind this statutory scheme is to extend a state’s home state status throughout the six-month period it would take for another state to become the child’s new home state”. Prizzia v. Prizzia, 58 Va. App. 137. (Va. App. 2011). Essentially, the Virginia Courts want to avoid confusion, and will take the jurisdiction to avoid a situation where no court has jurisdiction.
If the minor child in question has lived in another state for six months, then the Virginia courts will typically allow another state to take jurisdiction over the custody matter, so long as one of the parents/guardians has filed a case in the other state. This means if the child lives in another state, but you file in Virginia, the local courts will hear the case so long as the other parent does not file in the other state where the child resides. This can be a very important advantage in your case.
However, if no court has jurisdiction over the case because the child has not resided in a state for six months, or if they did but none of the parents live in the state that has proper jurisdiction, then Virginia may take the jurisdiction of the case so long as both occur: i) the child and at least one parent has a significant connection to Virginia, and ii) there is substantial evidence available in Virginia regarding the child in particular. Additionally, if a state would have a valid jurisdiction, but the court in said state refuses to take jurisdiction due to either i) a lack of relevant facts, ii) one parent’s bad conduct, or iii) a number of other reasons, Virginia can take jurisdiction over the custody/visitation matter.
For all the non-attorneys that have just read this explanation, I am sure that this was as clear as mud. If you have any questions regarding jurisdiction over your possible custody/visitation case, please contact one of our many family law attorneys at John W. Lee, P.C.
When there IS a Prior Custody/Visitation Order
Virginia’s UCCJEA makes it clear that if a prior state has already entered custody/visitation order then that State/Commonwealth has “Continuing exclusive jurisdiction” so long as one of the parents still residences in said State/Commonwealth. Thus, if you have a Virginia order, and your ex has left the Commonwealth with the child, Virginia will keep exclusive jurisdiction over the child so long as you do not consent to another state taking jurisdiction. Additionally, if you have an out of state order and move to Virginia with the child, then the other state will have jurisdiction over the matter so long as the other parent has not moved out of said state.
Examples for Custody/Visitation Jurisdiction
- For many years the family lived in Virginia. However, the mother relocated with the child to Alaska three months ago, and the father still resides in Virginia. There is no prior court order. Does Virginia have jurisdiction?
Examples for Custody/Visitation Jurisdiction (Cont.)
- In this situation the Virginia Courts are likely to take jurisdiction because the father still lives in Virginia and the child has not resided in Alaska for six months.
- However, it is important that the father goes to file the case ASAP. If he sleeps on his rights, Virginia may lose its ability to take jurisdiction in this matter in approximately three months.
- Before the separation the family lived in Virginia. The mother relocated with the child to Alaska eight months ago, and the father still lives in Virginia. There is no prior court order. Does Virginia have jurisdiction?
- In this situation, Alaska will have the best claim to jurisdiction due to the fact that the child has lived there for six or more months.
- However, there is always a strategic advantage to filing in Virginia. With the courts of Alaska being so far away, it may be best to file in Virginia and hope that the mother does not file a custody case in Alaska. If you find yourself in a similar circumstance you should contact a Virginia attorney.
- Before the separation the family lived in Virginia. The mother relocated with the child to Alaska eight months ago, and the father still lives in Virginia. There was a Virginia court order a few years ago.
- Virginia will have continuing exclusive jurisdiction so long as the father does not move to another State/Commonwealth.
- Before the separation the family lived in Virginia. The mother relocated with the child to Alaska eight months ago, and the father still lives in Virginia. There was a North Carolina court order a few years ago.
- It depends. Had the court order been entered as a foreign order in Virginia? If so Virginia may have jurisdiction so long as the father does not relocate out of the state.
- However, if the order was not entered in Virginia, then commonwealth will not have the best claim to the jurisdiction.
- Furthermore, North Carolina will not have jurisdiction.
- Alaska will have best jurisdiction.
- If the mother never files in Alaska, and responds to a Virginia case, it is possible that a Virginia Court may allow the case to be heard.
Jurisdiction over Child Support
For a Virginia Court to order child support it must have personal jurisdiction over both parents, as determined by Virginia’s Uniform Interstate Family Support Act, or UIFSA. This law notes many ways Virginia can take jurisdiction over a parent, including but not limited to;
- being a resident of Virginia,
- was served in Virginia,
- they submit to the jurisdiction by entering an appearance in court, filing a response to the case, or by signing a waiver,
- the party had resided in Virginia and helped support the child,
- the child lives in Virginia because the party took action to make the child live there,
- the party engaged in sexual intercourse in Virginia and the child was conceived by said intercourse,
- the party asserted their parentage with Virginia’s Department of Social Services,
- the party entered into a separation agreement,
- and for good measure “any other basis consistent with the constitutions of the Commonwealth and the United States”.
As a strategic point, it is generally a good idea to get custody of the child and support taken care of at the same time. If you file for support and scare away an out of state party, then they will not fight you on custody allowing the court to grant you sole legal and physical custody. At that point, you are free to file out of state where the other parent lives to pursue support in the other state.
It is also important to note that once a court has jurisdiction over child support, it will keep continuing exclusive jurisdiction until both parents and the child leave the state. This means that modification will need to be done in the state that the order was entered. Even if the parents and the child have left Virginia, the court will still have the continuing jurisdiction to enforce the order, despite not having the authority to modify the order. Nordstrom v. Nordstrom, 50 Va. App. 257 (Va. App. 2007). However, enforcement can be done anywhere the paying party lives.
Examples for Child Support Jurisdiction
- The mother and child live in Virginia, while the father lives in West Virginia. The mother files for custody and child support. Does the Virginia Court have jurisdiction if the father takes no part in the case nor does he personally have connections to Virginia?
- The mother will be unable to receive child support. However, she will win her custody case, which gives her a very strong advantage when she files for child support in West Virginia.
- The mother and child live in Virginia, while the father lives in West Virginia. The mother files for custody and child support. The father appears in the Virginia court to fight for visitation. Does the Virginia Court have jurisdiction over the child support matter?
- By appearing in court, the father has consented to Virginia taking jurisdiction over the child support matter.
- In 2015 a child support order was entered in Virginia, since then the child and both parents have left Virginia. Can Virginia modify the order?
- It would be advisable to seek an attorney in the state where the payor resides to determine if modification is advisable.