Home Is Where the Court Is: Determining Residence for Child Custody Matters under the UCCJEA

As families have become more mobile over the past fifty years, legislatures have struggled to make jurisdictional standards in child custody matters uniform across states. The attempts have been somewhat unsuccessful due in large part to the difficulty of defining a person’s residence. Suppose a Texas court issues a divorce decree to John and Jane and awards Jane sole custody of the couple’s daughter. But Jane moves with her daughter to Florida, wanting to be closer to her other family. John is given visitation rights under the Texas order and makes frequent trips to Florida to spend time with his daughter. If one of the parents wants to go to court to alter the custody determination, which state—Texas or Florida—has jurisdiction?

The uniform statute that both states have enacted says that Texas retains exclusive jurisdiction as long as any party “presently resides” in Texas. If John spends a month in Florida for visitation with his daughter, does he still presently reside in Texas? What if he goes to Florida for two months on a work assignment? If he moves to Florida for the foreseeable future but keeps his house in Texas and eventually intends to return?

These are the questions that lawmakers and courts have dealt with—and they have attempted not only to find answers but also to make the answers uniform in all fifty states. Having well-defined jurisdictional rules is critical in child custody determinations. The most recent attempt to make jurisdictional standards uniform is the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a model law adopted by forty-nine states.