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Divorce, custody, and child support jurisdiction

DIVORCE, CUSTODY, AND CHILD SUPPORT JURISDICTION

This blog was written for my own benefit. For a more thorough understanding of this subject matter you should direct your attention to Marshall Willick's website which has a plethora of information on this subject.

Jurisdiction can essentially be divided into two different subjects. The first of which is personal jurisdiction which entails jurisdiction over the person. In order for a court to have jurisdiction over the marriage however, it will need to have subject matter jurisdiction. Fortunately, a court will have subject matter jurisdiction as long as it has personal jurisdiction over at least one of the parties of the marriage. Subject matter jurisdiction cannot be waived. Thus two parties cannot stipulate to waive the subject matter requirement.

Note that all other states must honor a valid Nevada decree as long as the Nevada court had such jurisdiction over the marriage. Likewise Nevada is required to honor any Decree from any other of the United States. This duty to honor other states' Decrees stems from the Full Faith and Credit clause of the United States Constitution.

Again, in order for the court to have subject matter jurisdiction over the marriage it must have personal jurisdiction over one of the parties. For the Nevada court to have subject matter jurisdiction at least one of the parties must be a bona fide resident of the state of Nevada. There may be times when a Nevada court will decline to entertain a divorce despite it having valid jurisdiction over the marriage. This event would occur if another divorce action for the parties was occurring in another state. The court would likely look to which state had more of the incidents of the marriage. For instance, the court would look to where the marital property and children reside. More likely than not the later initiated jurisdiction will decline to entertain such divorce unless it is clear that the bulk of the incidents of the marriage lie in Nevada.

Keep in mind that a Nevada court can dissolve the marriage with personal jurisdiction over only one party. Thus if a party files a complaint for divorce in Nevada and defaults an out of state party who does not appear and thus the court has no personal jurisdiction of, the court will still be able to dissolve the marriage. However in this instance, where the court lacks personal jurisdiction over one of the parties, the court will not be able to adjudicate any rights as to alimony, custody, or child support.

However be aware of Nevada's long arm statute. The long arm statute allows for jurisdiction over a party who was living in a marital relationship within the state of Nevada and subsequently left. This individual, despite no longer being in the state's jurisdiction is still subject to an Order affecting alimony, child support, and or property settlement as long as one of the spouses continues to reside in Nevada. Remember that this long arm jurisdiction only occurs if one party of the marriage left the state of Nevada. It does not apply where one of the parties of a marriage moves to Nevada and the other party remains in another state. Under these facts the court would only have jurisdiction over the status of the divorce and any property that happened to be in the state of Nevada.

Child custody jurisdiction follows the child. The first thing to look for in making a jurisdictional determination is the location of the child. If there is no prior court order over the child then the state in which the child has been residing for the prior six months will be the "home state" of the child. This home state will always have jurisdiction over the child if there is no prior court orders. Now if there is no home state then the court can look to other "significant connection" factors to determine where jurisdiction is proper. Keep in mind that there is no personal jurisdiction requirement over a party or child in this determination. The only determination to be made when you have no prior court order is the domicile of the child over the past six months.

If Nevada is not the home state it is still possible for it to obtain initial custody jurisdiction. In order for it to do so either no other state can have home state jurisdiction or alternatively a state which does have home state jurisdiction must decline to exercise such jurisdiction. A state may decline to exercise such jurisdiction if it feels that Nevada is the more convenient jurisdiction or based on the unjustifiable misconduct of the party seeking jurisdiction in the other state.

For another court to decline exercising jurisdiction based on Nevada being a more convenient forum the court would have to find that the child and at least one parent have a significant connection with Nevada other than mere presence and that substantial evidence is available in Nevada concerning the child's care, protection, training, and personal relationships.

There are times when Nevada may exercise initial custody jurisdiction based on initial emergency jurisdiction. Nevada will not exercise such jurisdiction unless the child is present in Nevada and has been abandoned or an emergency amounting to threatened mistreatment or abuse has occurred. Such emergency jurisdiction Order will expire as soon as the state with proper home state or continuing exclusive jurisdiction issues an order on the matter. Thus, these orders are temporary.

Once a state has exercised its jurisdictional powers over a child and issued an order then that state will maintain jurisdiction over all future modifications of custody as long as that state retains continuing exclusive jurisdiction (CEJ) over the child. A state retains this CEJ as long as the child or one of the parents remains in this state. In the event that the child and both parents leave the state then that state will lose CEJ. Lawyers wishing to request that the state with CEJ cede jurisdiction to a new state should file their motions into the state which has CEJ. It is improper to file a motion into a Nevada court requesting that the Nevada court assume Jurisdiction because it has more connections to the parties. The only time a motion into a Nevada court on this subject is proper is if the lawyer is asking the Nevada court to make a factual determination that none of the parties including either of the parents or the child remain in the state which issued the initial custody Order. Once a state loses its CEJ the question becomes what state is now the home state. Until there is a new home state then the old home state will retain jurisdiction over the child.

Occasionally there will be circumstances wherein the parties will leave the state with CEJ and then some of the parties will return before there is a finding by another state that CEJ is lost by the issuing state. In this circumstance the question becomes which parties have returned? If it is the child and the custodial parent which have returned prior to another state finding that the issuing state lost CEJ then the issuing state will retain its CEJ. Where it is the non-custodial parent which returns to the state with CEJ but the child and custodial parent to do not return there will be no finding that CEJ will resume.

When it comes to child support Jurisdiction the question to ask is where is the obligor parent? Where is the parent who owes child support. The obligor parent can always be sued where he or she lives. Child support is set by the court with personal jurisdiction over the paying parent. Jurisdiction over a child support obligor is expansive. In addition to a court having jurisdiction over the obligor by sheer fact of his domicile in the state, the state can also have jurisdiction if other facts are present. For instance if the obligor had resided with the child in this state, or if the obligor had resided in this state and provided support for the child. If the obligor had engages in intercourse here, and the child may have been conceived here as a result. These are just a few of the seven total ways to obtain jurisdiction over the obligor parent.

When all of the parties have left the state of Nevada the order can be enforced by registering it in any state in which the obligor resides. Now if either party wishes to modify the order they then need to register in and move to amend the order in the state where the other party happens to live. Thus if the obligor wishes to modify the order then he needs to register the existing order in the state in which the oblige lives and move to modify in that state as well. When it is the oblige who wishes to modify the order then he or she would need to register the order in the state in which the obligor resides and then move to modify in that same state.

Be advised that unlike custody jurisdiction a court may not decline to exercise jurisdiction over child support modification once a basis for jurisdiction has been established. Also be advised that once child support has been established in one state that not every aspect of that order may be modified in the future by other states. For instance, the duration of the order will never change. So for instance in Nevada the rule is that child support continues until the child is 18 or 19 if still in high school. Other states require the obligation to continue until the child is 21 years of age. If Nevada was the jurisdiction which issued the initial order then in no event will the child's age effect termination of the support order. The duration of the obligation cannot be modified.