November 17, 2007

Out of State: Can Oregon hear my custody case?

Going through a custody dispute is never easy, and becomes even harder when the parties and children live in different states. Should you file here? Should you file where the other parent lives? What if the other parent files a custody action in another state even though the kids live primarily in Oregon? What if you both moved to different states after separation? If a couple has no kids, as long as one spouse lives in Oregon and meets the residency requirements, Oregon can usually hear the case. (We blogged about this topic in an earlier post) If a couple has kids, the court must decide if it has jurisdiction to hear the custody portion of the case. To make the decision, Oregon looks to the “Uniform Child Custody Jurisdiction And Enforcement Act.” (UCCJEA) ORS 109.700 et seq.

To determine if Oregon has the power to make the first custody determination, the court must satisfy one of the following four tests:

(1) Is Oregon the “Home State” where the child has lived for at least six months prior to filing?

(2) Does Oregon have “Significant Connections” to the child and at least one parent or parental figure, with good evidence regarding the child’s care, protection and personal relationships located here, AND no “Home State” exists; or the “Home State” has declined to exercise its jurisdiction.

(3) Has the Home State or Significant Connections State declined jurisdiction in favor of Oregon, based on inconvenient forum grounds (ORS 109.761) or unjustifiable conduct grounds (ORS 109.764)?

(4) Is there NO other state with Home State or “significant connections” jurisdiction?

In some emergency circumstances, Oregon can assert temporary jurisdiction over a child even if the above tests are not met. For example, if a child or parent is threatened with mistreatment or abuse, Oregon can temporarily hear the matter. This type of jurisdiction is limited and usually only lasts until the “Home State” or “Significant Connections” state issues an order.Even if you meet one of the above tests and Oregon can assert jurisdiction, the court must determine if it should exercise jurisdiction. If Oregon is a less convenient place to hear the dispute, Oregon may decline to hear the matter. In making this decision, the courts considers domestic violence issues, travel and financial considerations, where the best evidence is, how familiar are the courts with the matter and how fast could they hear it, and how long a child has resided outside a state. ORS 109.761 Also, Oregon might decline jurisdiction if a party has engaged in wrongful conduct (like misrepresenting where a child lives).

If you are filing for custody and the children have lived in multiple states, make sure your lawyer is familiar with the UCCJEA and has all of the information needed to analyze whether Oregon is the right place to file.