Fox Family Lawyers
Cynthia Moseley Fox
Attorney at Law
7751 Carondelet Avenue,
Suite 700
Clayton, Missouri 63105
(St. Louis)
314.727.4880

Recognizing Differences in State Laws Can Be Critical to How a Custody Issue Is Resolved

Last week, I discussed the paternity battle over Anna Nichol Smith’s baby girl, the only surviving heir to what could be a multi-billion fortune. In the end, how the “winner” is selected may depend on whether U.S. or Bahamian law is applied.

 

In divorce, understanding how U.S. states resolve conflicts between their individual laws can be critical to how and where the case is resolved. And, with each generation of Americans more mobile than the preceding one, the issue of conflicting laws between states is becoming a more common factor.

 

Several years ago, a couple that married and lived in Oklahoma separated. At separation, as for much of the marriage, the wife was away from home attending college. They had two young children. Mom would see the kids only on weekends she was home from school, while dad cared for them the rest of the time.

 

Dad initiated the separation and took the kids with him, all the way to Jefferson County, Missouri, his birthplace and home to many of his relatives. Dad did so because, with his wife absent for days and weeks at a time, there was no one else back in Oklahoma to care for his children.

 

Dad filed for divorce in Missouri, while his wife, livid about the spiriting away of her children, filed in Oklahoma. With two cases in play, the critical issue became determining in which state the child custody issue would be tried.

 

Dad had been in Missouri only a couple weeks when he filed for divorce. He did so after his wife had filed her case in Oklahoma and with the specific hope of convincing the Missouri court to take jurisdiction over the child custody issue. He believed that his children had a much stronger bond with him than their mother and that a Missouri court would be more sympathetic to his petition to keep them in Missouri.

 

The father was relying on a statute called the Uniform Child Custody Jurisdiction Act (UCCJA) as his saving grace. The UCCJA has been adopted by all 50 states and was created to promote an orderly resolution to custody disputes when two states are involved. The courts in each state look to the UCCJA and its list of criteria for determining which will have jurisdiction. However, there are nuanced yet important differences between the versions of the UCCJA passed by each state.

 

Under Missouri’s UCCJA, dad thought he had a good chance of having his case heard in Missouri, believing his situation conformed to its criteria. However, he overlooked the definition of one important factor in Missouri’s UCCJA and this ultimately became his undoing.

 

As expected, the Oklahoma court claimed jurisdiction. The kids were born in Oklahoma and lived most of their lives there until just weeks earlier. To the father’s great dismay, the family court in Jefferson County declined to do the same, even though both kids were physically present in Missouri, lived with at least one parent there, and had extensive family connections in Missouri.

 

Under the UCCJA, the first factor in deciding where the custody issue will be tried is by determining which state is the child’s “home state”. Dad had failed to understand how Missouri defined “home state” in its UCCJA. Under Missouri’s version, his kids had to live in Missouri for at least 6 months before he filed. Since they had not, Missouri deferred the case to Oklahoma.

 

Had dad been able to keep the children with him in Missouri for 6 months and then filed for divorce, Missouri would likely have claimed jurisdiction. However, even if Missouri had, the Oklahoma court would probably have stood its ground as well. What happens then, with two custody trials in different states, is a subject for another column.