The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) aids court to determine which state has jurisdiction (the power to hear and decide on a particular matter) over the child custody issues. So for example, if the spouses/parent from different states dispute over the custody of a minor child, the UCCJEA applies. The purpose of the UCCJEA is to minimize conflict between the states in custody disputes.
The UCCJEA has been adopted by several states throughout the nation. Georgia adopted the UCCJEA in 2001 and codified it under the O.C.G.A. sections 19-9-40 to 19-9-51 and 19-9-61 to 19-9-70. Pursuant to O.C.G.A. § 19-9-61, O.C.G.A. § 19-9-62 and O.C.G.A. § 19-9-64, a superior court in Georgia has initial child custody jurisdiction, continuing and exclusive jurisdiction, and temporary emergency jurisdiction. If two spouses decide to file for divorce in Georgia with a minor child involved, it is critical to understand the distinct jurisdictional requirements under the Georgia UCCJEA. Below explains criteria to determine which state has jurisdiction to resolve initial child custody disputes or subsequent modifications to the initial child custody order.
Initial Child Custody Jurisdiction
A superior court in Georgia has jurisdiction to make an initial child custody determination if: Georgia is the “home state” of the child on the date a custody proceeding is commenced, or if Georgia was the “home state” of the child within six (6) months before commencement and the child is not in Georgia but a parent (or a person acting as a parent) continues to live in Georgia. O.C.G.A. §19-9-61(a)(1). Georgia law essentially provides that a child custody determination must be made by the “home state” of the child. A child’s “home state” for the purposes of jurisdiction refers to the child’s physical presence and is different from the residence or domicile of the parent having legal custody. [See Slay v. Calhoun, 332 Ga. App. 335 (2015) (the Court decided that the state of Georgia was the child’s home state because the child spent more time in Georgia than in Florida, where the mother resided, and received almost all of the medical care in Georgia)]. Home state is a state in which the child lives or has lived with a parent (or a person acting as a parent) for six (6) months prior to custody petition. O.C.G.A § 19–9–41(7).
In some cases, the court of the home state of the child will decline to exercise jurisdiction on the ground that Georgia is the more appropriate forum under O.C.G.A § 19–9–67 or O.C.G.A § 19–9–68. Once this happens, a Georgia court has jurisdiction to make an initial custody determination if the child and at least one of the child’s parents (or a person acting as a parent) have a “significant connection” with Georgia, and there is substantial evidence in Georgia concerning the child’s care, protection, training, and personal relationships. O.C.G.A § 19–9–61(a)(2). Significant connections requires more than mere physical presence and can be established the parent’s (or a person acting as a parent’s) ties with a state evidenced by changing address or receiving mail in Georgia, registering to vote in Georgia, or obtaining a Georgia driver’s license and registering vehicles in Georgia.
Continuing and Exclusive Jurisdiction
Under O.C.G.A § 19-9-62, courts in Georgia have “continuing and exclusive jurisdiction” over a child custody determination made by a Georgia court until the child and the parent (or any person acting as a parent) no longer have a significant connection with Georgia and a court determines that the child and the parent do not presently reside in Georgia. If the court no longer has exclusive, continuing jurisdiction, it may modify its child custody determination only if it has jurisdiction to make an initial determination under O.C.G.A § 19–9–61. Eliminating connection with a state or moving out of the state, however, will not automatically alter which court has jurisdiction under the UCCJEA.
Under O.C.G.A § 19-9-67, a Georgia court with “continuing, exclusive jurisdiction” may determine that it is an “inconvenient forum (meaning the wrong jurisdiction)” for further custody considerations. Before a Georgia court determines whether it is an inconvenient forum, the court must first consider whether it is appropriate for another state’s court to exercise jurisdiction. O.C.G.A § 19-9-67 requires that the court allow the parties to submit information and consider all relevant factors including:
- Whether family violence has occurred and is likely to continue in the future and which state could best protect the parties and the child,
- The length of time the child has resided outside Georgia,
- The distance between the court Georgia and the court in the state that would assume jurisdiction,
- The relative financial circumstances of the parties,
- Any agreement of the parties as to which state should assume jurisdiction,
- The nature and location of the evidence required to resolve the pending litigation, including testimony of the child,
- The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence, and (8) the familiarity of the court of each state with the facts and issues in the pending litigation.
Temporary Emergency Jurisdiction
Even if Georgia is not the child’s “home state”, it may be necessary for a Georgia court to exercise temporary emergency jurisdiction and make a temporary custody ruling. A court in Georgia has temporary emergency jurisdiction if:
- the child is physically present in Georgia, and
- the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse. O.C.G.A § 19–9–64(a).
If there is no previous child custody ruling from another state and a custody action has not been started, the emergency order will remain in effect until the “home state” rules on the issue. If Georgia becomes the “home state” the emergency order can become final.
To file for a divorce in Georgia, there are four requirements that need to be satisfied for jurisdictional purposes: subject matter jurisdiction, personal jurisdiction, venue, and residence. Most of the time jurisdiction is simple in divorce cases. However, it can be incredibly complex and confusing because there are several sources of jurisdiction in family law cases each with different standards. If the custody of the minor child is in issue, the Uniform Child Custody Jurisdiction and Enforcement Act (adopted by Georgia law) provides jurisdictional standard. So in some instances, one state may have jurisdiction for one issue while another has jurisdiction for the remaining issue. Therefore, it is advised that you consult with your attorney on these issues before you file for a divorce action.
Obtaining Legal Help
If you have a family law or divorce case involving minor child(ren) the Alpharetta, Cumming, Metro-Atlanta area, call us at 770-609-1247 to speak with one of our experienced domestic litigation attorneys. We have helped hundred of people with family law and divorce cases involving jurisdictional issues and question regarding minor children and we can help you too.