Interstate Custody

How Interstate Custody Jurisdiction Works in the United States

Interstate custody jurisdiction in the United States operates through two complementary federal and uniform state frameworks: the Parental Kidnapping Prevention Act (PKPA) codified at 28 U.S.C. § 1738A and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The PKPA, enacted December 28, 1980, is a federal full faith and credit law requiring all states to honor and enforce custody determinations made by courts in other states. The UCCJEA, drafted by the National Conference of Commissioners on Uniform State Laws in 1997, has been adopted by 49 states, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands—with Massachusetts being the only state yet to enact it as of 2026.

The Home State Rule: Primary Basis for Jurisdiction

Under both the PKPA and UCCJEA, the "home state" holds primary jurisdiction over custody matters. The home state is defined as the state where the child lived with a parent or person acting as a parent for at least 6 consecutive months immediately before the custody proceeding began. For children under 6 months old, the home state is where the child has lived since birth. This rule applies identically across state implementations:

California Family Code § 3421(a)(1) provides that California has jurisdiction if "this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement."

Texas Family Code § 152.201 mirrors this language, establishing that Texas courts have jurisdiction when "this state is the home state of the child on the date of the commencement of the proceeding" or was the home state within 6 months and a parent continues to reside there.

New York Domestic Relations Law § 76(1)(a) provides identical home state jurisdiction, requiring the child to have "lived with a parent or guardian for at least six consecutive months prior to the commencement of a custody proceeding."

Exclusive Continuing Jurisdiction

Once a state makes an initial custody determination consistent with the UCCJEA, that state retains exclusive continuing jurisdiction until either: (1) the court determines neither the child, parents, nor any person acting as a parent has a significant connection with the state and substantial evidence is no longer available; or (2) all parties have moved away from the state. Under Texas Family Code § 152.202, "Texas retains jurisdiction even if Texas is no longer the home state of the child or the custodial parent, so long as there is a significant connection with this state."

Secondary Jurisdictional Bases

When no home state exists, courts may exercise jurisdiction based on the following priority order established under 28 U.S.C. § 1738A:

1. Significant Connection Test: The child and at least one parent have a significant connection with the state beyond mere physical presence, and substantial evidence concerning the child's care, protection, training, and personal relationships is available in that state.

2. More Appropriate Forum: All courts with home state or significant connection jurisdiction have declined jurisdiction, finding the current state more appropriate under UCCJEA § 207 or § 208.

3. Default Jurisdiction: No other state would have jurisdiction under the above criteria.

Emergency Jurisdiction for Safety

States may exercise temporary emergency jurisdiction under UCCJEA § 204 when a child is present and has been abandoned, or when emergency intervention is necessary to protect the child, sibling, or parent from mistreatment or abuse. As amended by the Violence Against Women Act of 2000, emergency jurisdiction expressly covers domestic violence situations. However, emergency orders are temporary—intended only until the court with proper jurisdiction can act.

Preventing Forum Shopping and Parental Abduction

Both the PKPA and UCCJEA contain anti-forum-shopping provisions. A court will generally refuse jurisdiction if it was created by a parent's "unjustifiable conduct," such as wrongfully taking or concealing a child in a new state to establish a new home state. California Family Code § 3428 and equivalent state provisions codify this principle. The goal is preventing parents from benefiting from wrongful relocations while protecting children's stability.

Interstate Enforcement Process

The UCCJEA provides a streamlined enforcement process across state lines:

1. Registration: File a petition to register the out-of-state custody order with the court where enforcement is needed, attaching a certified copy of the original decree.

2. Notice: The other parent receives notice of registration and opportunity to contest validity.

3. Enforcement: Once registered, the order is treated as if issued by the registering state's court, enabling local enforcement mechanisms.

Filing fees for interstate custody matters vary significantly: California charges approximately $435 for initial filings, Colorado charges $105 for modifications (as of January 2025 under HB 2024-1286), Maryland charges $110 for registering foreign custody orders, and Washington State (King County) charges $310 for relocation objections. Fee waivers are available in all states for parties receiving public benefits or demonstrating financial hardship.

Special Considerations

Tribal court orders must be treated as if entered by another state under optional UCCJEA tribal provisions adopted by most states. Foreign country orders are generally treated as state orders unless the custody law of that country violates fundamental principles of human rights—a provision addressing concerns about jurisdictions with discriminatory family law practices.

How Interprovincial Parenting Jurisdiction Works in Canada

Canada's framework for interprovincial parenting jurisdiction operates through the federal Divorce Act (R.S.C. 1985, c. 3, 2nd Supp.) working alongside provincial family law statutes. The March 1, 2021 amendments enacted through Bill C-78 marked the first substantive changes to federal family law in over 20 years, introducing significant reforms to terminology and jurisdictional procedures. Critically, Canadian law no longer uses "custody" and "access"—these terms have been replaced with "parenting orders," "parenting time," "decision-making responsibility," and "contact orders" under the amended Divorce Act.

Habitual Residence: The Primary Jurisdictional Test

Unlike the U.S. "home state" concept, Canadian jurisdiction centers on "habitual residence." The federal Divorce Act uses "ordinary residence" in English (sections 3-5) and "résidence habituelle" in French, with courts generally treating these as equivalent in family law contexts. Provincial statutes have largely adopted habitual residence as the primary jurisdictional test.

Ontario's Children's Law Reform Act (R.S.O. 1990, c. C.12) § 22(1)(a) provides that Ontario courts "shall only exercise its jurisdiction" to make parenting orders "where the child is habitually resident in Ontario at the commencement of the application." Section 22(2) defines habitual residence as including where a child resides with one parent "with the consent, implied consent or acquiescence" of the other parent.

British Columbia's Family Law Act (S.B.C. 2011, c. 25) § 72(2) defines habitual residence as the place where the child "most recently resided" with parents, or with one parent under an agreement, with implied consent, or under a court order. Section 74 permits BC courts to make parenting orders only if "the child is habitually resident in British Columbia when the application is filed" or alternative conditions are met.

Alberta's Family Law Act does not explicitly define when courts have geographic jurisdiction over parenting issues, instead relying on common law rules about forum conveniens—whether the child has a "real and substantial connection" with the province.

Protection Against Wrongful Removal

Both federal and provincial statutes protect against unilateral relocation. Under Ontario CLRA § 22(3), "the removal or withholding of a child without the consent of all persons having decision-making responsibility" does not alter habitual residence unless there has been "acquiescence or undue delay" by the left-behind parent. BC Family Law Act § 72(3) contains identical protections. This prevents parents from establishing new jurisdiction through wrongful retention.

Transfer of Proceedings Under the Divorce Act

Divorce Act § 6 allows courts to transfer parenting proceedings to the province where the child habitually resides. Following the 2021 amendments, this transfer power applies even to unopposed applications—previously transfers required the proceeding to be "opposed." Section 6(1) provides: "If an application for an order under section 16.1 is made in a divorce proceeding... and the child of the marriage in respect of whom the order is sought is habitually resident in another province, the court may, on application by a spouse or on its own motion, transfer the proceeding."

Alternative Bases for Provincial Jurisdiction

When a child is not habitually resident in the province, courts may still exercise jurisdiction under specific conditions. Ontario CLRA § 22(1)(b) allows jurisdiction where: (i) the child is physically present; (ii) substantial evidence is available; (iii) no application is pending where the child habitually resides; (iv) no foreign order has been recognized; (v) the child has a real and substantial connection; and (vi) on balance of convenience, jurisdiction is appropriate.

BC Family Law Act § 74(2) contains similar provisions, requiring courts to consider whether it is "more appropriate for jurisdiction to be exercised outside British Columbia."

Serious Harm Exception

Ontario CLRA § 23 provides emergency jurisdiction where a child is physically present and "would suffer serious harm" if remaining with or returned to someone with decision-making responsibility. BC Family Law Act § 76 permits orders superseding recognized foreign orders where a child faces serious harm.

Quebec Civil Law Differences

Quebec operates under a civil law system with the Civil Code of Québec (C.C.Q.) governing family matters. While the federal Divorce Act applies to divorcing spouses, Quebec's civil law framework governs unmarried parents and certain procedural matters. Quebec courts apply the principle of the child's domicile rather than habitual residence in some contexts, though practical application often aligns with common law provinces.

Recognition and Enforcement of Foreign Orders

BC Family Law Act § 75(1) requires courts to recognize extraprovincial orders if "the extraprovincial tribunal would have had jurisdiction to make the order under the rules that are applicable in that jurisdiction." This reciprocal recognition framework facilitates enforcement across provincial boundaries.

The Hague Convention and International Cases

Canada has signed but not yet ratified the 1996 and 2007 Hague Conventions on child protection and support. The 1980 Hague Convention on International Child Abduction applies to wrongful removal cases involving the 103 contracting states, requiring return of children to their country of habitual residence within 6 weeks where possible. Canadian courts apply the Convention through provincial implementing legislation.