My children live in another state, and that state won’t allow me any visitation rights. What can I do?
According to attorney Gavin Gaukroger of Foster Pepper PLLC, in child custody cases, the welfare of the child is the paramount consideration. Trial courts have broad discretion in deciding these cases, but there is a heavy presumption in favor of parental care. Federal law states that a parent who doesn’t have primary custody of a child is entitled to reasonable visitation rights. Therefore, family courts will usually order some form of visitation.
The relocation of the custodial parent, either within the state or to another one, often produces practical difficulties with visitation. Traditionally, courts have put restrictions on parents moving to a different state with a child (especially if the parent was moving to keep the other parent from visiting the child). In many situations, courts have required the moving parent to get the court’s permission prior to an out-of-state relocation. But, because it is increasingly common for parents to live in different states post-divorce, the restrictions have been changing.
Practical problems with custody between parents who live in different states led Congress to enact the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Prevention Act. The UCCJA is effective in every state and preempts state laws regarding a state court’s authority over matters of child custody for children with parents in different states. Both the PKPA and the UCCJA generally limit jurisdiction over these conflicts to the child’s “home state.” These laws effectively act to prevent matters of child custody from moving from the courts of the child’s “home state” to those of another.
Under the UCCJA, a child’s “home state” is the state in which the child has resided for the preceding six months. The law establishes that the court in the child’s new state of residence must be in contact with the court in the child’s former state of residence, where the original custodial decisions regarding the child were made. Therefore, if a parent has secured or obtained visitation rights in the original state, he or she will have the same visitation rights in another state.
If your children have relocated to another state with their custodial parent but lived in Washington when the custody determination was made, your original visitation rights should still be in effect in their new state of residence. You will want to file a copy of the Washington court’s original custody determination with the court in the state in which your children live now. Once that court is made aware of your existing visitation rights, the state is required to enforce that order. Likewise, if the custody determination was made in another state and the children now live in Washington, file a copy of the custody determination in a Washington court, so that your visitation rights can be enforced here.
Answers are intended for general information only and are not intended to take the place of the advice of your own attorney. Ask a Lawyer is in partnership with the Access to Justice Institute at Seattle University and Foster Pepper. Got questions? E-mail firstname.lastname@example.org.
For copy of actual issue, go to https://www.realchangenews.org/2007/04/04/apr-4-2007-entire-issue