Interstate Divorce Modifications And Move-Aways

Hossein Berenji, Aug 10, 2017

According to the U.S. Census Bureau, most people move about twelve times in their adult lifetimes. Statistically, most of these moves occur before age 40, so most relocations involve minor children. Even a “local” move can upset the delicate balance that is a family’s weekly schedule, because driving from Upland to Long Beach can feel like traveling from the earth to the moon. Longer-distance moves, such as out-of-county or out-of-state moves, often complicate things even more. Child custody and visitation orders are based on the best interests of the children, and that is not a fixed value, as what is “best” for the children always changes over time.

Since many or most relocations also involve job changes, family support obligations (child and spousal support) may be affected as well, as either an increase or decrease is often in order. However, although almost all relocations usually constitute changed family circumstances, not all job changes constitute changed financial circumstances, at least for family law purposes.

Child Custody

Child visitation and child custody fall under the Uniform Child Custody Jurisdiction and Enforcement Act, which California and many other states have adopted in one form or another. The UCCJEA basically replaced the old uniform child custody jurisdiction law, which was originally rolled out in 1968. The biggest change is that the new law gives preference to the children’s home state, so it better reflects the attitude of most family law judges toward consistency and stability. Moreover, the UCCJEA cured some inconsistencies with the rarely-used Parental Kidnapping Prevention Act, which judges use to decide cases involving interstate transportation of children without the custodial parent’s legal consent.

Interstate child custody issues occur frequently in domestic violence matters, because alleged victims often take their children across state lines to get away from alleged abusers. In fact, the states that still use the old law often cite the UCCJEA’s home-state preference as their rationale, on the theory that the UCCJEA makes it harder for women who suddenly flee a violent home to establish custody measures in another state.

The UCCJEA defines “home state” as the place where the child has resided for the last six months, and according to this law, the home state has “exclusive [and] continuing jurisdiction” over all custody and visitation matters. If no state meets that definition, the judge will determine a home state based on:

  • “Significant connections” with one parent in one state, and
  • “Substantial evidence” concerning the children’s “care, protection, training, and personal relationships” in one state.

Assume that Mother and Father were divorced in Nevada, and Mother, who is the custodial parent under Nevada law, moves to California with the children. Father could file in Nevada to try and prevent Mother’s move or at least modify the parenting time arrangement, but if Mother wants to file a motion in California, she must wait six months.

Even though California has a joint custody presumption, out-of-state divorce orders with the typical every other weekend and holiday schedule probably cannot be modified to a 2-3-2 or another more even time sharing plan unless both parties consent to such an adjustment.

Child Support

Under pressure from the federal government, all states have adopted the Uniform Interstate Family Support Act. Under the UIFSA, the home state, or the state which granted the divorce, always retains exclusive jurisdiction over child support matters. This issue is significant because different states calculate child support in different ways.

To return to the previous example, if Mother (who now lives in California) wanted Father (who still lives in Nevada), to pay more child support, Mother would have to file a motion in Nevada, irrespective of the children’s residence, their ties to a certain state, or any other UCCJEA factors. Likewise, if Father wanted to file a motion to reduce his child support, he must file in Nevada, and he would never be able to take advantage of California’s different laws. Nevada is a percentage-of-income state that sets child support based almost exclusively on the obligor’s income; California is an income-shares state that includes more factors and usually divides the support obligation more equitably between the parents.

Although different states have different child support philosophies, almost all of them, including California, have imputed income rules. Essentially, to reduce a child support obligation, the movant must establish that the job change or other income loss occurred in good faith and that the movant had almost no control over the change. In other words, an obligor cannot leave a high-paying job to reduce a child support obligation.

Interstate moves often create specific kinds of family law issues. For a case evaluation with an experienced divorce attorney in Los Angeles, contact Berenji & Associates Divorce Lawyers. We routinely handle complex child custody cases.

Berenji & Associates Divorce Lawyers
550 S. Hill Street STE 1467
Los Angeles, CA 90013
TEL: (213) 985-3007