Courts & Corrections

SCOV Law Blog: Determining a child’s ‘home state’?

Editor’s note: This piece from the SCOV Law Blog is by Eric Fanning

Pierce v. Slate, 2017 VT 63

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Creative Commons photo by walknboston via Flickr

I’ll bet everyone reading this has heard the old saying, “Home is where the heart is.” Right now you might be asking yourself why I bothered to begin this post with possibly the most clichéd of all clichés.

I’ll tell you why — because in a sense that’s pretty much what this case is about: Where is home? And just as I’m sure all of you have heard that saying before, I’m also willing to bet that every single family law attorney who is reading this post wishes the law were as simple as, “Home is where the heart is.”

Coming back to the land of reality, we have the case of parents Laurie Pierce and Josh Slate. These two had a child who was born in Vermont in June 2016. Soon after the baby was born, the family moved to Virginia, where Father had been a longtime resident. Upon arriving in Virginia, mother signed a lease for an apartment, got a job, transferred her address with the U.S. Postal Service, applied for and started receiving welfare benefits, and transferred the child’s medical records from Vermont. If I didn’t know any better, I’d say that at this point mother seemed pretty darn determined to stay and raise this kid in Virginia. Turns out, I’d be wrong.

For reasons not discussed in SCOV’s opinion (other than a passing mention of Dad’s proposed joint custody arrangement), Mom hightailed it out of Virginia back to Vermont with their child after only two weeks. The day after Mom and child left the land of lovers, Dad filed for custody. The Virginia district court, after deciding it had jurisdiction, awarded him custody. Subsequently, Mom filed in Vermont, and asked the Vermont court to determine custody and visitation. The Vermont court reviewed the evidence and conferred with the Virginia court. Afterwards, the Vermont court dismissed Mom’s case on the basis that the Virginia’s exercise of jurisdiction was proper. Mom asked the Vermont court to reconsider the dismissal, and the court declined. Mom appeals.

Mom argues that Vermont was the appropriate state to exercise jurisdiction in this situation because Vermont was the child’s “home state.” No, we are not talking about the state “where the heart is.” We’re talking about “home state” under the Uniform Child Custody Jurisdiction and Enforcement Act (I know this is a mouthful, which is why from now on I’m going refer to the law as UCCJEA).

The UCCJEA is the statute that governs child custody proceedings in Vermont. It’s based off a uniform code, which basically means that other states have adopted substantially similar laws. The hope here is that if parents and children move from state to state, the law won’t drastically change, and people won’t get confused when custody suddenly becomes an issue. So, now that custody is an issue, SCOV looks to the UCCJEA.

Basically, under the UCCJEA, jurisdiction lies with the court that is in the child’s home state. The statute defines “home state” as the state in which the child has lived for at least six months prior to the start of the custody proceedings, or, if the child is less than six months old, the state where the child has lived since birth. The statute also says that “a period of temporary absence … is part of the period.” In other words, if parent and child lived in Vermont for the past five years, but they travel out of state to visit Uncle Frank in Pittsburgh for a few days before a custody case is filed, that doesn’t mean Vermont is no longer “home.”

Mom relies on this language to argue that the two weeks they spent in Virginia was a “temporary absence,” and thus Vermont did not forfeit jurisdiction to make an initial custody determination. SCOV disagrees.

First of all, it’s important to realize that the UCCJEA has a “first in time” rule when it comes to simultaneous custody proceedings. So, if custody is filed first in another state that a Vermont court finds had jurisdiction “substantially in conformity” with the UCCJEA, then the Vermont court, in most cases, has to back off. Dad already filed in Virginia by the time Mom filed in Vermont, so the question for SCOV is: Did Virginia have jurisdiction “substantially in conformity” with Vermont’s law?

If you read the definition of “home state” carefully, you’d realize that Pierce and Slate’s child did not have a “home state” within the meaning of the UCCJEA. When there is no “home state,” the law provides for Vermont to take jurisdiction where “the child and the child’s parents, or the child and at least one parent … have a significant connection with Vermont other than mere physical presence; and substantial evidence is available in Vermont concerning the child’s care, protection, training, and personal relationships.” Conversely, if the court of another state makes findings “substantially in conformity” with those criteria, then jurisdiction can lie with that state.

SCOV says that the Virginia court made numerous findings in support of jurisdiction under the “substantial connection” clause. Just to reiterate, Mom signed a lease for an apartment, got a job, transferred her address with the U.S. Postal Service, got welfare benefits, and transferred the child’s medical records from Vermont. SCOV states that these events, taken together, clearly indicate Mom’s intention to establish residency in Virginia and raise the child there. SCOV says that Virginia was correct to assert jurisdiction because these events show a “significant connection” of the child with Virginia. Since Virginia has jurisdiction under the UCCJEA, and Dad filed down there first, the Vermont court was right to dismiss mom’s custody petition.

SCOV then reviews Mom’s argument that the family court committed reversible error by conferring with the Virginia court off the record. SCOV notes that, technically, the UCCJEA does state that a record should be made of communications between courts, and so the family court may have committed error here. Unfortunately for mom though, she didn’t object to an off-the-record conference between courts when it was first proposed, and so she can’t raise this argument on appeal. SCOV affirms, and so custody goes to dad in Virginia.

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