Where to start your child custody case seems simple at first, doesn’t it? I live in California. I’ll file in California. Or, maybe you’re thinking, my child lives in California, so I’ll file in California. Or, maybe you’re thinking, we just moved here from Pennsylvania, but there’s no way Pennsylvania still has jurisdiction, right?
The answer, many lawyers will tell you, is “it depends.” In this first part of our post regarding Child Custody Jurisdiction, I will explain what Child Custody Jurisdiction is, why it is important, and how an attorney can help you. In parts II through V, I will explain the four different ways in which California will assume initial Child Custody Jurisdiction. Finally, in part VI, I will explain how to determine what state has jurisdiction after another state has already made child custody orders.
What is Child Custody Jurisdiction?
There are two kinds of jurisdiction: personal and subject matter.
Child custody jurisdiction is typically a subject matter jurisdiction question, but for general information, personal jurisdiction is the question of whether a particular court has the power to make orders regarding the people involved in the case. In other words, if I have never set forth in California, what authority does a California judge have to make orders regarding me?
Subject matter jurisdiction is exactly what it sounds like: it is the question of whether a particular court has the power to make orders regarding a specific subject matter, i.e. custody of children born to two particular people.
The question of which court has the authority to make orders regarding child custody in a particular matter involving particular individuals is a subject matter jurisdiction problem.
Why is Child Custody Jurisdiction Important?
Before any court can make a ruling, the judge must first determine it has the authority to make any orders at all. Therefore, as a threshold issue when a case is first initiated, you will find that, in cases where it seems like jurisdiction is not 100% certain, the judge will make inquiries of the parties to ensure it is the right court to make a decision.
If for some reason you cannot successfully demonstrate to the judge that he or she has subject matter jurisdiction over the matter, then the judge will never hear the actual merits of your case. In other words, you will never get to argue child custody or visitation because you already lost the jurisdictional battle.
That is why it is crucially important that you research the jurisdictional question, file your case in the right court, and be prepared to answer the judge’s questions regarding jurisdiction.
Do You Need An Attorney Regarding Child Custody Jurisdiction?
Jurisdiction is a legal topic only lawyers find remotely interesting. That is because all lawyers were required in law school to take a Civil Procedure course, where the questions of personal jurisdiction and subject matter jurisdiction are debated over the course of an entire semester, if not an entire year in some law schools.
If you are trying to proceed without an attorney, but can afford an attorney for part of your case, and jurisdiction is a hotly debated issue in your case, then your money would be well spent hiring an attorney to argue this part of the case for you. Perhaps once your lawyer wins the jurisdictional argument, you can let your attorney go and proceed to the child custody phase on your own.
In other words, if you’re going to hire an attorney to argue only one part of your case, jurisdiction would probably be the one issue where an attorney would be most helpful.