Grandparents who want to sue for visitation with their grandchildren often wonder which state has jurisdiction in their case. If a grandparent lives in state X, and the grandchildren live in Y, in which state should the suit be filed? This question can be crucial, as each state has its own laws governing grandparent visitation, and some states are much more liberal than others.
Many grandparents would love to file in the state in which they live.
But unless the grandchildren live there, too, it won't work. Most of the time, the suit must be filed in the grandchild's "home state."
When Visitation Is Connected to Another Suit
If a grandparent is suing for visitation in conjunction with a divorce or custody suit, the suit will of course be filed in the same state that is hearing that suit, which is almost always the child's "home state." The "home state" is the state in which the child has resided with a parent or a person acting as a parent for the six months prior to the court action. Once a state has accepted jurisdiction in a custody/visitation case, it retains jurisdiction until all parties to the court action have left the state.
If grandparent visitation is not a part of a custody suit but a separate action, it should be filed in the state that accepted jurisdiction in the custody suit, unless all parties to the original suit have left the state.
Not Connected to an Earlier Suit
Sometimes grandparents file for visitation when there has been no prior court case connected to the family. Perhaps the parents were never married, and they separated without going through the court system. Perhaps one of the parents is deceased, incarcerated or missing.
In such cases, the parents of the absent parent may sue for contact with their grandchildren.
In the case of intact families, in which both parents reside with children, state laws vary. Some states do not allow grandparents to sue for visitation with grandchildren living in an intact family. Others do. If your grandchild's home state does allow such suits, you can file independently of any other court action.
What constitutes a child's home state? The obvious answer is the state in which the child resides, but a state may also be considered a home state if the child lived there within six months of the filing of the suit and if at least one parent still lives there.
Although grandparents can represent themselves in court, if you and your grandchild live in different states, you will almost certainly need the help of a lawyer.
Terms to Know
Grandparents' rights fall under the category of family law, and family law is usually considered a matter for states to regulate. Obviously, however, in today's mobile society, states sometimes have to work together. To understand how custody and visitation orders work across state lines, it is helpful to know a bit about the PKPA, the UCCJA and the UCCJEA.
The Parental Kidnapping Prevention Act (PKPA) is a federal law that was enacted in 1980 to prevent non-custodial parents from taking children to a different state and suing for custody in that state. The law provides that the courts of one state cannot making a ruling about custody without giving a decision previously made in another state "full faith and credit." The law was amended in 1998 to include visitation as well as custody and to include grandparents as well as parents. Read the full text of the law here.
The Uniform Child Custody and Jurisdiction Act (UCCJA) took a different route to becoming law. It was proposed by a body called the National Conference of Commissioners on Uniform State Laws (NCCUSL). Such laws do not go into effect until they are passed by state legislatures. The UCCJA was proposed and passed in 1968, but it was not adopted by all states until 1981.
By that time the PKPA had been passed.
Problems arose because there were some discrepancies between the PKPA and the UCCJA. In 1997 the NCCUSL proposed a new version of the UCCJA, called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Just like the UCCJA, the UCCJEA must be adopted by states to be effective. Only Massachusetts and Puerto Rico have failed to adopt it.
What this means for grandparents is that if they are granted visitation in one state, other states will recognize that order. It is difficult, therefore, for parents to change their state of residence to avoid allowing grandparents access to their children.