My wife and I are currently separated and live in separate states, though our child lives with me. I do not yet meet the residency requirements to file for divorce in my state, but my wife does meet the residency requirements in her state.
She says that once she files for divorce in her state that she will get primary custody, and I will have to send our child to live with her.
My question is does my wife's home state have jurisdiction over my child and I so I would be forced to send my child to live with my wife once she files for divorce?
I am unable to give you legal advice on divorce. I can give general divorce help for men, though, my knowledge is based on Pennsylvania divorce laws where I am licensed to practice.
If there have never been any custody orders regarding your child, you may want to go ahead and file for your initial complaint for child custody in your home state.
Courts look at several factors when establishing jurisdiction in a custody case that are different from the residency requirements that come into play when filing for divorce, so your state may choose to take jurisdiction over your custody case even though you may not yet be able to file for divorce there.
States tend to look to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) when dealing with multi-state custody issues, and typically would have a six-month residency requirement (the child residing in the state for at least six consecutive months immediately prior to the commencement of a child custody proceeding) for taking jurisdiction of an initial custody case.
Jurisdiction Questions:Child Custody and UCCJEA
If there are any prior custody orders from another state, that state may have continuing jurisdiction over any custody actions regarding your child.
Generally, if there is already an order in place, and as long as one parent continues to live in the state that issued the existing custody order, that state would need to decline continuing exclusive jurisdiction prior to any other state allowing a modification action.
If your wife's home state does take jurisdiction over your custody case, this would mean that the custody process would move forward in that state. But there is generally not a default rule that would automatically give the parent residing in that state primary custody.
Remember, I am unable to provide you with anything more than divorce tips for men, so please consult with divorce lawyers for men in your jurisdiction.