Tuesday, November 24, 2009

Modifying Out-of-State Child Custody Orders in Ohio

We get around. Mobility creates issues for those who are divorced in one state and want to modify that existing custody order in another state.

Ohio, like many states in the country, has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified at Ohio Revised Code §§ 3127.01-3127.53. Generally speaking, the UCCJEA prioritized the "home state" as the proper place for modifications of existing orders and provided that the first state to issue an initial custody order will have "continuing" and "exclusive" jurisdiction over any request for modification as long as there is one parent who continues to live in that state.

So, for example, if you got divorced in Michigan but moved to Ohio with the children while your ex-spouse continues to live in Michigan, there is a better than good chance that Michigan will be deemed to have continuing and exclusive jurisdiction -the proper place for any modification request. I find that the most difficult part of proceeding under the UCCJEA is helping clients understand that it is not sufficient that Ohio has become the "home state" of the children. That, additionally the issuing out-of-state court must find that it does not have jurisdiction or relinquish jurisdiction because it finds that Ohio is a more convenient forum.

Emergency situations are treated differently. A court may take jurisdiction even though it is not the home state, if the child is present in the state and has been abandoned, or is subjected to or threatened with mistreatment or abuse. An order issued by a court with emergency jurisdiction is temporary.

Recently, in McGhan v. Vettel, the Ohio Supreme Court adopted a two-prong test for determining whether an Ohio court has jurisdiction to modify an out-of-state custody order in non-emergency situations.

Prong One: Ohio must have jurisdiction to make an "initial determination" of custody at the time modification is sought.

Prong One of the test will be met if: (1) Ohio is deemed to be the "home state" of the child in essence, the state where the child has resided for at least six months just prior to filing of a modification proceeding; (2) the child and at least one of the parents, or person acting as a parent has a "substantial connection" with the state of Ohio, more than mere physical presence; (3) declination of jurisdiction, i.e., another state that is the "home state" has declined jurisdiction over the modification; or (4) default jurisdiction, i.e., no other state that could exercise jurisdiction has done so.

Prong Two: Did the out-of-state court find it no longer had jurisdiction? Did the out-of-state court find Ohio was the more convenient forum? Did all of the parties move away from the out-of-state forum?

Prong Two will be met if the other state issuing the order finds that it no longer has jurisdiction OR that Ohio is the more convenient forum to hear the modification request (for example, finding that Ohio has a more significant connection to the child). In addition, this prong will be met if there is a finding that all of the parties no longer live in the issuing state forum.

In my Michigan-Ohio example, if Ohio is the home state of the children (prong one of the test) AND Michigan agrees that Ohio is the more convenient forum or relinquishes jurisdiction (prong two of the test), Ohio will be able to modify the Michigan custody order.

Consult an attorney for more information on how to modify an out-of-state custody order in Ohio.

Written by Carol L. Gasper, clg@clgasperlaw.com