When and Where Should I File to Modify My Child Custody Order?

Obermayer Rebmann Maxwell & Hippel LLP

Custody of child Did you know that you can file to modify your child custody order at any time?  Unlike in child support cases where a change in circumstances is needed to modify the order, a custody order can be modified at any time.  If you feel that the current custody arrangement under your custody order is not in your child’s best interest, you can file to modify the order.  The best interests of the child is the standard and not “what has changed.”

Another common question when seeking to change a custody order is: “Where should I file to change it?”  Where you file to modify custody is governed by a group of laws under the Uniform Child Custody Jurisdiction and Enforcement Act (also known as the UCCJEA).  All but one state in the United States have adopted and follow the UCCJEA (the exception being Massachusetts).  Generally, when modifying a custody order, pursuant to the UCCJEA, the proper state in which to file the petition is the state where the order was issued (commonly referred to as the “issuing state”) unless none of the parties and the child no longer reside in that state.  Therefore, under the UCCJEA, the parents are to go back to the court of the issuing state as long as a parent remains in the issuing state.  But, under the UCCJEA, the issuing state can determine that case should no longer be in that state and would be better to be in another state.  There is also an exception where the issuing state is not the court that determines whether the case should continue in that court.  The exception exists when no parties and the child reside in the issuing state.  In such a situation, another state may decide that no parents (or person acting as a parent) currently reside in the issuing state and then modify the order.  In all other instances, the issuing state determines whether it should continue to have jurisdiction over the matter.

If no one remains in the issuing state, the last piece of the puzzle is: “Where is the child’s home state?”  A child’s “home state” is where the child has lived for the last six months.  So, if no one remains in the issuing state, a parent can file to modify a custody order in the child’s home state.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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