UCCJEA – Which State Decides Custody (Family Code 3400)

When parents live in different states, or one parent takes a child across a border, the first question is not who should have custody but which court is allowed to decide. The answer comes from the Uniform Child Custody Jurisdiction and Enforcement Act, enacted in California at California Code Family Code § 3400 and the sections that follow.

The central rule is the home state rule. A state has jurisdiction to make an initial custody determination if it is the child’s home state, meaning the state where the child lived with a parent for at least six consecutive months immediately before the case was filed, or was the home state within the last six months and a parent still lives there. Only if no state qualifies as the home state does the court look to significant connections and substantial evidence. Once a state has made a custody order, it generally keeps exclusive continuing jurisdiction as long as a parent or the child still lives there. The UCCJEA works together with the federal Parental Kidnapping Prevention Act to require states to honor each other’s orders.

For international cases, the Hague Convention on the Civil Aspects of International Child Abduction, which California courts enforce under California Code Family Code § 3442, provides a procedure for the prompt return of a child wrongfully removed from his or her country of habitual residence.

Every custody petition in California must include a UCCJEA declaration, form FL-105, listing where the child has lived for the past five years. Getting it wrong can lead to an order that another state refuses to recognize.