In most situations and in most states, you can file for custody in the “home state” of the child. The “home state” is basically the state where the child has lived (with a parent or a person acting as a parent) for at least the last six consecutive months - however there are exceptions to this rule. (Note: Temporary absence from the state does not affect the six-month calculation.) If your child is less than six months old, the “home state” is usually the state where the child has lived from birth.
If you and your child recently moved to a new state, you may not be able to file for custody in that new state until you have lived there for at least six months. Also, if there is a prior court order for custody, then you may have to file in that same court for future custody issues. We strongly suggest getting advice from an attorney about your particular situation.
If there is more than one state involved - for example, if the child has moved across state lines, or if the other parent is in a different state - then it can be more complicated. In these cases, both state and federal laws may govern which court can hear your custody case. Therefore, as in all custody cases, it is very important that you find a lawyer to help you determine which court to go to.
If you are trying to get temporary emergency custody in a new state you have moved to, it might depend on what state you are filing in. All states except for Massachusetts (and Puerto Rico) follow the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Under the UCCJEA, you can file for temporary emergency custody in a state other than the home state if:
- the child is present in the state, and
- the child has been abandoned or needs emergency protection, because the child (or a sibling or parent of the child) is subjected to or threatened with mistreatment or abuse.
Massachusetts (but not Puerto Rico) follows a slightly different law called the UCCJA. Under the UCCJA, a person can file for temporary emergency jurisdiction only if the child was abandoned or needs emergency protection because the child (not the parent or sibling) is subjected to or threatened with mistreatment or abuse.
Getting emergency custody is difficult, so please talk to a lawyer before you file with the clerk of court. You may also want to talk to a domestic violence advocate about your options and for help in finding a lawyer.
Under certain circumstances, there may be other ways to file for custody. Please talk to a lawyer about this. Go to our Finding a Lawyer page for legal referrals. Also, if you have a custody case involving more than one state (or if you are considering relocating to another state) and there is a history of domestic violence, you may call the Legal Resource Center on Violence Against Women at 1-800-556-4053 for information and referrals to attorneys who may be able to assist.