By Christian M. Lapham, Esquire

Imagine that you are seeking custody of your minor child. You have done a considerable amount of legwork, including extensive research on your legal options, hired an attorney, paid a sizeable retainer amount, and lined up potential witnesses to testify on your behalf.  You walk into court for an initial hearing, and the opposing attorney argues that the case should be dismissed for lack of jurisdiction. Amazingly, the judge agrees, and the case is dismissed. You walk out crestfallen – how could this have been avoided? What can you do?

This scenario and the question it presents are critically important in family law. An understanding of the Commonwealth of Virginia’s jurisdiction, or power to decide certain matters, can mean the difference between winning or losing in your case. This is particularly important in Northern Virginia, where most counties are less than an hour’s drive from the District of Columbia or Maryland. The focus of this article is to give an introduction to these issues and to stress how important it is to retain an attorney who understands these issues in the context of your case.

Child Custody and the UCCJEA

The controlling authority on Virginia’s jurisdictional powers over custody matters is the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). The UCCJEA has been adopted in some form in most other states in the United States. This Act indicates most notably when Virginia may make an initial custody determination, when Virginia may exercise continuing jurisdiction over a custody matter, when Virginia may modify a prior determination, and when it may decline jurisdiction when it would otherwise have it. 

Virginia has the power to make an initial custody determination under four possible scenarios. 

• First, as of the date the custody case is filed, Virginia is the child’s home state (meaning the state in which the child lives for at least six straight months right before the filing of a custody case, or if the child is less than six months old, then the state in which the child lived from birth), or Virginia was the home state within six months before the filing of the custody case and a parent or person acting as a parent lives in Virginia. 

• Second, another state is not the child’s home state, or is a home state but declines jurisdiction because Virginia is a more appropriate forum and the child and at least one of the parents is present in Virginia. 

• Third, all possible other states which otherwise may exercise jurisdiction have declined to do so because Virginia is the more appropriate forum. 

• Fourth, there simply are no other states with jurisdiction under the bases cited in scenarios one through three. 

Once this initial custody determination is made in Virginia, it is hard for Virginia to lose jurisdiction. As long as either the child, the child’s parents, or any person acting as a parent continues to live in Virginia, then the Commonwealth may exercise exclusive, continuing jurisdiction. 

Virginia can modify prior custody orders from other states as long as certain conditions are met: 

• First, Virginia must have the same basis to modify the custody order in place as it does to make initial custody determinations as discussed above. 

• Second, the state which issued the prior custody order must relinquish jurisdiction or a court must find (either in Virginia or the issuing state) that child and parents no longer reside in the issuing state. 

EXCEPTION: Virginia’s power to modify or initiate a custody determination has one important caveat, noted as the emergency exception. Virginia can make an initial or subsequent custody ruling even if it otherwise could not do so if the child is in Virginia and has been abandoned or the child or child’s parent has been subject to mistreatment or abuse. 

Back to the initial scenario: What can you do to avoid this situation? In these multi-state situations, do not be afraid to ask your attorney in the initial consultation whether or not Virginia even has jurisdiction over your case, and why. It makes far more financial sense to learn these things at the onset rather than to pay an attorney and possible expert witnesses thousands of dollars, only to learn the court in which you have filed will not even hear your case. If your attorney cannot give you a ready answer, find someone who will. As noted above, this issue can mean the difference between winning and losing.  

Note: This article is not intended as legal advice. Nothing herein shall create an attorney/client relationship. Every case is different and the information contained in the above paragraphs will not apply to every situation. For any specific case we encourage you to seek the advice and counsel of a licensed attorney.