Saturday, September 12, 2015

A GRANDPARENT CUSTODY CASE INVOLVING TWO STATES - WHO HAS JURISDICTION?

I was recently contacted by a grandparent who had the following question:  "I raised my grandchildren for several years.  My daughter went through treatment for drug abuse and later took the children back.  However, her addiction has returned and I am afraid that my grandchildren are now at risk.  She's in California and I'm in Arizona.  I need to get custody of my grandchildren.  How can I do this from another state?"

This scenario presents a complicated legal issue involving not only a grandparent's custody matter, but also a potential battle between states over which state has the jurisdiction (i.e., the power) to make the custody decision.

Grandparents in Arizona, and in other states, now have legal rights, including the right to visitation -- and even the right to be awarded custody of a grandchild, under certain circumstances.  Arizona's grandparent-rights law is contained in Arizona Revised Statutes, Section 24-409.  For a custody petition to be considered, the grandparents must stand "in loco parentis" to the child.  In other words, they must be able to show that they "stood in the shoes" of a parent by caring for the child for a substantial period of time.  (It may be sufficient to show that the child resided in the grandparents' home with a parent, and the grandparents helped care for the child.)

Custody cases that involve two or more states are governed by a set of laws known as the Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA).  Nearly every state in the U.S. has adopted the UCCJEA.  The law provides uniformity and helps the competing courts determine which state will preside over a custody dispute.  Under the UCCJEA, the state where the child has lived for the past six months prior to a court action being initiated is considered to be the "Home State" of the child.  Generally (but not always) the child's "Home State" will be the state that has "jurisdiction," and it is where the custody matter will be litigated.  However, the Court considers a number of factors before determining jurisdiction, including which state has the "most significant connection" with the child (i.e., where schools, doctors, family members and friends who are familiar with the child's needs, etc., are located).  The Court also considers whether substantial evidence is available in the state concerning the child's care, protection, training and personal relationships.

The UCCJEA provides that a state can accept temporary emergency jurisdiction if the child is present in that state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to mistreatment or abuse.

Under the UCCJEA, a state can choose to decline jurisdiction where it believe that, under the circumstances (and considering the statutory factors), another state is the more appropriate forum.

The bottom line is that grandparents do have rights.  And ultimately, in making a custody decision, a judge is guided by what she/he believes will be the best interests of the children.

In a complicated situation involving a potential conflict between two states over custody jurisdiction, it helps to have a strong, experienced attorney on your side.


This information is provided for general purposes only, and does not create an attorney-client relationship between the author and the reader.  Every Family Court case is unique.  If you have a matter that appears similar to any of the scenarios that you read in this blog, you should be aware that: (1) even a slight difference in a factual situation can lead to a vastly different result; and (2) the laws are constantly changing and new laws are being enacted; thus, you should not rely on any particular statement of the law in this blog, since the law may be different today than it was when the blog post was written.

Our attorney, Gary Frank, is a grandparents' rights advocate.  In addition to being a litigation attorney and a professional Family Law mediator, Mr. Frank has acted in the capacity of a Judge Pro Tem in the Maricopa County Superior Court.  This has given him an understanding of the inner-workings of the court, and a unique perspective  that most attorneys lack.  If you are in need of a consultation regarding any area of Family Law, please do not hesitate to give our office a call today at 602-383-3610; or feel free to contact us through our web site at www.garyfranklaw.com; or by email at gary.frank@azbar.org.   We look forward to hearing from you.