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

Parallel Custody Cases in Two Different States Can Create Unenforceable Outcomes

Last week, we met Julia and George, a married couple produced totally from my imagination, to illustrate what can happen when two states are involved in dissolving a marriage. Julie had moved from Tennessee to St. Louis on an extended temporary business assignment. After being in St. Louis for six months, she filed for divorce here in Missouri.


As was written last week, Julia’s six months here qualified her as a Missouri resident and she would be able to divorce George right here in river city without ever returning to Knoxville, so long as George were properly served with notice of the divorce action.


But, there’s a twist: Julia and George are the parents of two teenage girls and Julia brought them with her to St. Louis, with George’s permission, so they could spend time with Julia’s family who all live in the metropolitan area. As such, besides filing for divorce, Julia also sued for primary physical custody of her two daughters with the St. Louis Family Court. Since the girls had lived in St. Louis for at least six months, had at least one of her parents here as well as extensive other family contacts, the Missouri court agreed to hear the custody suit.


“Not so fast”, declared George and the Tennessee court to which he took his lawsuit seeking that his children be returned to Knoxville so that he could have primary physical custody. George argued that the two girls had lived their entire lives, except for the most recent six months, in Tennessee, had one parent in Tennessee, and even more extensive family contacts in Tennessee than Missouri. The Tennessee court agreed and set the case for trial on their docket.


Now we have two custody cases in two different states set to go forward. Most likely, they will result in two different and possibly conflicting outcomes whereby each court will declare that the children should be in both St. Louis and Knoxville at the same point in time.


This is a mess that has no clear-cut answer. The federal court is not likely to step in since the U.S. Supreme Court has ruled that child custody is a state issue. Further, neither Julia nor George will be able to have the orders issued by their respective courts enforced in the other state.


For example, let’s say that George is awarded primary physical custody by the Tennessee court. This will only happen if Julia voluntarily agrees to return the children to Tennessee, or if they go there on their own. Failing that, Missouri authorities will ignore any Tennessee court orders requiring the children’s return. Similarly, Julia may be reluctant to allow the girls to visit their dad in Knoxville, even if such visits are mandated by the Missouri court that decided her case, because she has no assurance of having the girls returned.


Fortunately for Julia and George, there may be a resolution in the offing. 44 states have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which is now under consideration by the Missouri Legislature. Under the UCCJEA, the two judges involved (i.e. those from Knoxville and St. Louis) are to conference on the record, with the parties and their attorneys present, to decide which judge is to have control over the case. Once a single judge is selected, each state has agreed that they will abide by and enforce the orders issued by that judge.


Of course, all of this assumes that Julia and George will ultimately follow the orders issued by that judge. Next week’s column will talk about what happens when a parent illegally takes or retains custody of their child.