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What are possible custody arrangements if the parents live in two states31 Dec 2016

Raising children when the parents live apart can be challenging, but a custody arrangement when parents live in different states introduces new challenges in making a fair custody agreement. Ideally, the custody arrangement should ensure the child has a strong relationship with both parents, regardless of distance.

Which State Handles the Case?
The first complication in terms of an interstate custody arrangement is which state court should handle the case. This typically involves deciding which state has jurisdiction, which is usually based on:

  • Whether there are existing court orders
  • Where the child currently lives
  • Where the child lived before

If no court has entered a custody order, the state in which the child has lived for at least six months is usually considered the home state to resolve the case. If the child has not lived in one state for the last six months or since birth, the child has no home state and the court will consider which state is suited to handle the custody case. This will involve looking for significant connections between the child and a state. A state can take jurisdiction if:

  • The child has lived in or currently lives in the state
  • The state has significant connections to the child
  • At least one parent lives in the state

Physical and Legal Custody
States recognize two types of custody of a child: legal and physical. Joint custody usually refers to both parents sharing physical and legal custody of a child. When parents live in different states, it is possible for both to share physical and legal custody of a child, or some other arrangement.

Legal custody grants a parent the right to make major decisions regarding the child’s welfare, such as medical issues and schooling issues. Parents can live in different states and share legal custody if the parents have a cordial relationship and communicate, although it can be difficult for the parent who does not live in the same state as the child to participate in medical appointments, for example.

Physical custody means the child has a home with both parents. Again, this is possible if the parents live in two states as it does not always mean a 50-50 split between each parent’s home. In fact, most children spend about one-third of their time with one parent and two-thirds of their time with the other parent. When parents live far apart, a common arrangement is for the child to remain in one state for the school year and live with the other parent during the summer.

Important Considerations
While joint custody is possible when parents live in different states, judges are unlikely to order joint physical custody because it’s not always feasible. Judges do not like to order children to be uprooted from one state to the other for relatively short periods of time. If parents have joint custody and one moves out-of-state, the court may transfer physical custody to one parent to avoid this issue.

Despite this, a parent living far away from a child can still enjoy a strong relationship with their child. Parenting plans are usually created to allow a child to spend summers and long school breaks with their non-custodial parent. If parents live a relatively short distance away but over state lines, courts usually award more frequent visits such as every other weekend with extended visits once a month.

Child Custody Orders are Always Enforceable
Once a court issues a custody order, that state will retain jurisdiction. This state will be the state to make any modifications to the custody or child support orders in the future. Regardless of which state issues a custody order, the order is enforceable in other states. If one parent does not follow the custody order, the other parent can file an enforcement action in their current state of residence or the state in which the parent lives.

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