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WHERE DO I FILE MY CUSTODY CASE? by Steven Pradell
Perhaps the first question a parent must answer in resolving a case concerning the custody and visitation of a child is, "Where do I file my case?" The power of each court is limited to certain subjects and geographical areas. This power is called the jurisdiction of the court. A court in Alaska can only issue orders about children if it has jurisdiction to do so.
A law called the Uniform Child Custody Jurisdiction Act (the UCCJA) was created years ago and adopted in Alaska. Under the UCCJA, the Superior Court has jurisdiction to make a child custody determination if the state is the home state of the child when the case begins, or has been the child's home state within six months before commencement of the proceeding. "Home state" means the state in which the child, immediately preceding the time involved, lived with the child's parents, a parent, or a person acting as a parent, for at least six consecutive months. Therefore, if a child has lived in Alaska for at least 6 months prior to the filing of a divorce or custody complaint, Alaska would normally have jurisdiction to hear the case and issue rulings about the child.
The UCCJA was created in part because parents in the past would wrongfully remove a child to another state and immediately file for custody there, obtaining a "home court" advantage. The law was designed in an attempt to prevent this practice, called "forum shopping." The six month requirement is designed to make it clearer as to which state has jurisdiction so that cases are not filed simultaneously in different states and courts don't issue inconsistent rulings.
Unfortunately problems still arise even after the adoption of the UCCJA by most of the states. Sometimes a parent will wrongfully remove a child and hide the child in another state for six months in order to obtain jurisdiction elsewhere. Alaska law provides that if the children are wrongfully brought to Alaska or if similar reprehensible conduct has occurred, the court will not normally not exercise its jurisdiction unless it is necessary in an emergency to protect the child. For conduct to be wrongful, it is not necessary that a child be taken in violation of an outstanding order or decree, nor is it a defense that no order or decree has been entered. It is sufficient when the conduct is "so objectionable that a court cannot in good conscience permit the party access to its jurisdiction." No single formula can resolve the issue whether jurisdiction should be declined by reason of conduct. The court must consider the totality of the circumstances in making such a determination.
A superior court may decline to exercise its jurisdiction any time before issuing a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum. The court must consider if it is in the interest of the child that another state assume jurisdiction. The court must delineate its reasoning in deciding that Alaska is an inconvenient forum.
Judges from separate states have the ability under the law to communicate with each other and work together to determine which state should exercise jurisdiction over the children.
It may be wise to consult with an attorney about issues concerning the custody and visitation of your children. Many attorneys will consult with potential clients for a nominal fee to answer questions and define the services they offer. The Alaska Bar Association can refer you to an attorney who can answer your legal questions regarding these matters.
Steven Pradell is an Anchorage attorney with a practice emphasizing family law, including child custody, divorce, child support and adoption. Articles on legal topics of interest to Alaskans can be accessed on the internet at Http://www.alaskanlawyers.com © 1998 by Steven Pradell. This article is not intended to provide legal advice and should not be relied on for that purpose.