The Nature of Jurisdiction
The law calls jurisdiction the power of the court to decide the matter when questions arise over whether a different court, perhaps one in a different state, should be deciding the matter instead. Courts routinely exercise jurisdiction when no one disputes that everyone is in the right court in the right state. The question of jurisdiction doesn't even arise in many family law cases. Sometimes, it's obvious that a divorce, child custody, or other family law case is in the right state. If, for instance, both parents and any children all currently live in Pennsylvania, have lived here for some time, have relatives here, and have no emergency reason to ask for help from a court of a different state, then the Pennsylvania court is going to clearly be the right place for the parties to resolve the dispute.
Questions Over Jurisdiction
But in many other family law cases, jurisdiction can be a significant issue, leaving the parties and the courts scratching their heads about the state in which the parties should be filing, disputing, and deciding their family law case. Parties aren't the only ones concerned over jurisdiction. Courts can be especially loath to take jurisdiction over a case that has significant ties to another state. Courts are generally busy enough with their own cases not to reach into other states to take on more judicial work when doing so could offend the rightful powers of a court in that other state. Whether the parties are fighting or the court is reluctant and confused, jurisdiction could be a key issue in any of the following examples, among many other scenarios:
- Divorcing spouses separated a while ago, have been residing in different states, and now each intends to file for divorce in their home state where they know a good family law attorney and so as not to have to travel to the other state
- The unmarried parents of children have been living apart in different states with the children going back and forth between states for frequent visits, and now each parent intends to file for child custody and support in their home state
- The married parents of a child were living together until one parent removed the child from the home to another state, alleging that the other parent had abused the parent and child, and now that parent intends to file for divorce, a protective order, and child custody and support in that other state
The Significance of Jurisdiction
When the parties to a family law case dispute jurisdiction, they're not just wasting their time, money, and breath. The state in which the family law dispute ends up can be a huge advantage or disadvantage, depending on whether it ends up in your home state or in your adversary's home state. Imagine the time, trouble, and expense of having to retain an attorney in a distant state and travel to that state frequently to argue in that state's court for rights that you hope to enjoy here in your Pennsylvania home. Which side wins the battle over jurisdiction can heavily influence which side wins the war over child custody, child support, spousal support, property division, and other family law disputes.
Jurisdiction in Divorce Cases
Courts follow statutory law and case law to decide which court in which state has the power to decide a family law case, such as one for divorce or child custody. The simpler cases are those involving divorcing spouses. Generally, when spouses file for divorce, the divorce jurisdiction statute 23 Pa. Cons. Stat. Section 3104 permits the Pennsylvania family court in which they file to accept, hear, and decide the case if at least one of the two spouses has lived in the state for at least six months right up to the filing of the complaint: “No spouse is entitled to commence an action for divorce or annulment under this part unless at least one of the parties has been a bona fide resident in this Commonwealth for at least six months immediately previous to the commencement of the action.” Pennsylvania's divorce jurisdiction statute discourages married persons living out of state from running into the state for a quickie divorce. A few states have shorter waiting periods, like Nevada requiring only six weeks of residence before filing for divorce in that state.
Jurisdiction in Child Custody Cases
The harder cases in which to determine jurisdiction are those involving child custody and where the parties have been moving from state to state. The Uniform Child Custody Jurisdiction and Enforcement Act, 23 Pa. Cons. Stat. Sections 5421 et seq., adopted in Pennsylvania and forty-eight other states (just not Massachusetts), tells the courts how to decide jurisdiction in child custody disputes involving more than one state. While the Uniform Act is complex, its basic structure requires the court to follow this hierarchy:
- If the child and a parent have a home state, defined as the child and parent living in that state for six months before filing the case, then jurisdiction is in that home state and not other states to which the parties or child may have various connections
- If the child and a parent have no home state, having moved or been apart without residing recently in a home state, then jurisdiction is in a state in which the child or a parent have a significant connection, which could be relatives, school, employment, property, and the like, then jurisdiction is in that state
- A court may exercise emergency jurisdiction to protect a child abandoned in the state or a child and parent or guardian fleeing to and residing in the state, until a home state court or court of a state where a party has significant connections takes jurisdiction
- If the parties cannot satisfy any of the above conditions for jurisdiction, then a court in the state where a party presently resides exercises jurisdiction
Premier Pennsylvania Family Court Representation
If you need representation in Pennsylvania to determine in which court you can file for divorce or child custody or are already facing a jurisdiction dispute with your opposing party, get the skilled and experienced representation you need for your best outcome. Pennsylvania family law attorney Joseph D. Lento and the Lento Law Firm's family law team are available for your representation. Call 888.535.3686 or go online now.