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EspañolI want to change (modify) my final custody order but I have moved to a new state. Can I have the custody order modified by my new state?
If you have a final custody order and you move to another state, you will generally still have to return to the original state and ask the court that issued the order to make any modifications (changes) to the order. However, it is possible that your new state would agree to modify the order if one of the following is true:
- the original court decides that it cannot modify (change) the order;
- the original court agrees to transfer the case to your new state; or
- there are no longer any “interested parties,” such as the child, a parent, or an individual acting as a parent, living in the original state.1
In addition, the court in the new state can change (modify) your order temporarily if there is an emergency.
1 UCCJEA § 203
I am moving and I want to transfer my case to the new state where my child and I will live. How can I do that?
The first thing that’s important is to talk with an attorney about the state parental kidnapping and relocation laws in your current state. If it is legal for you to move across state lines with the children under those laws, and you wish to transfer the custody matter, you can file an “inconvenient forum” motion in the original court with the help of your attorney, which asks the original state to transfer the case to the state where you want to move to. However, it’s important to talk through your chances of success with your attorney to decide whether or not it makes sense to file the inconvenient forum motion in your case. (You don’t want to offend a judge who may end up keeping the custody case and making a decision about your children.) When deciding whether or not to transfer a custody case, a judge will consider the factors listed in What factors will a judge consider in deciding whether the new state would be a more convenient forum (place) to hear the case?
Why might a judge agree to transfer the custody case to my new state?
The judge might agree to transfer your custody case to your new state if you can meet one of the following requirements:
- the judge in the original state finds that they do not have “continuing jurisdiction” because there are no longer significant connections or substantial evidence regarding the child in that state;
- the judge in the original state finds that the new state would be a more “convenient forum” (place) to take over the case – see What factors will a judge consider in deciding whether the new state would be a more convenient forum (place) to hear the case? for further explanation of this; or
- the custody case is over, and none of the child’s parents or guardians still live in the original state and neither does the child.1
1 UCCJEA §§ 202, 203
What factors will a judge consider in deciding whether the new state would be a more convenient forum (place) to hear the case?
In Why might a judge agree to transfer the custody case to my new state?, we listed three reasons why a judge might agree to transfer your case to a new state. The second reason listed is if the judge in the original state believes that the new state is a more “convenient forum.” Here is a list of factors that the judge must consider when deciding if the new state would be a more convenient forum (place) to hear the case:
- whether domestic 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 lived outside of the original state – the longer you have been in the new state, the better;
- the distance between the original state and the new state;
- the relative financial circumstances of the parties – for example, possibly if the other parent is in a better position to handle the costs associated with flying to another state to appear in court, it could weigh in your favor;
- any agreement you and the child’s other parent may have over which state should take power (“jurisdiction”) over the case;
- the nature and location of the evidence that would be required to resolve the litigation – for example, would more witnesses be in the new state?;
- the ability of the court of each state to decide the issue quickly and effectively; and
- how familiar the court of each state is with the facts and issues of your case. If the judge in the original state has handled court cases regarding the child and knows the parties well, it may not make sense to transfer the case to a new judge in a new state.1
We strongly recommend getting the help of a lawyer to figure out if your situation meets the requirements listed. For legal help, go to Finding a Lawyer . The Legal Resource Center on Violence Against Women may be able to assist your attorney to understand the arguments available under the UCCJEA if you are a victim of abuse. Their number is 301-270-1550.
1 UCCJEA § 207
I think that I might meet the requirements to transfer my custody case to a new state. Where do I begin?
If you believe that your situation may come under the laws explained above, we strongly suggest talking to an attorney in the original state where the order was issued as well as in your current state for help in filing the appropriate legal papers. Go to our Finding a Lawyer page for legal referrals.
If you cannot find an attorney, and you would like to talk more with WomensLaw about your particular situation, you can email us on our Email Hotline and we can see if there is any further information we can provide.
