Multi-state child custody actions often get filed where it is unclear if, and how, the state where the action is filed has subject matter jurisdiction to determine child custody. In defending such actions the reflexive response is to file a motion to dismiss due to lack of subject matter jurisdiction pursuant to Rule 12(b)(1), SCRCP.
However, typically, such defective child custody pleadings lack the required verification of basic facts regarding the child’s residence the past five years. S.C. Code § 63-15-346(A) of South Carolina’s version of the Uniform Interstate Child Custody Jurisdiction and Enforcement Act (UCCJEA) lists information that is required to be submitted in an affidavit or in the initial pleading:
(A) Subject to local law providing for the confidentiality of procedures, addresses, and other identifying information, in a child custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child’s present address or whereabouts, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit must state whether the party:
(1) has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child custody determination, if any;
(2) knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding; and
(3) knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons.
Since resolution of subject matter jurisdiction for child custody often turns on where the parties and the child have been living the past few years, the information required by § 63-15-346(A) is vital to a subject matter jurisdiction analysis. While one could file a motion to dismiss without the Plaintiff first filing the required pleading or affidavit, doing so allows the Plaintiff the first opportunity to raise factual problems in the Defendant’s submission. That is because when filing a motion to dismiss for lack of subject matter jurisdiction the Defendant will be required to file an affidavit and supporting evidence stating the basis upon which he or she claims jurisdiction is improper. Rule 6(d), SCRCP. If one doesn’t demand the § 63-15-346(A) filing before one files a motion to dismiss, one grants the Plaintiff the first opportunity to challenge the other party’s factual accuracy regarding the child’s and parties’ residential history.
Thus, rather than filing a motion to dismiss, the Defendant may file a motion to stay the proceedings until the Plaintiff files the required pleading or affidavit. § 63-15-346(B) specifically authorizes this:
(B) If the information required by subsection (A) is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.
Rather than guess at the Plaintiff’s basis for claiming subject matter jurisdiction is proper, one can file a § 63-15-346(B) motion and demand this information before filing a 12(b)(1) motion. Doing so gives the Defendant the procedural advantage of learning the basis of the Plaintiff’s claim of jurisdiction before revealing why the Defendant believes such jurisdiction is improper.
Spot on as usual Greg !
I wrote an article published in South Carolina Lawyer, Vol. 3, No. 4, page 39, titled “Saved by Another Lawyer’s Negligence,” dealing with the necessity of the initial affidavit is all child custody cases. Because it was written during the days of the UCCJA rather than the UCCJEA, the article is a little dated but you might find it instructive, useful and interesting.
Yes! And it works unless the Court chooses to disregard the rules.
True, but one can raise a lack of subject matter jurisdiction at any time. So long as the child isn’t with the opposing party, there’s zero downside to this strategy.
What if you were filed against during a temporary visit (was attending a semester of college in same state as ex husband, retained residency in another state). Then lost custody from judge who lives in the same town as ex (judges kids went to school with ex). Is there a proper procedure or anything we can do about the clear lack of jurisdiction on this judges part? To late for appeals but what about filing a complain with uccjea for jurisdiction issues. I also noticed that part of the rules said a more proper venue, my ex lived on the other side of the state from us while we were there. I had primary at the time and all their schools doctors etc were in our area. Wouldn’t this have been a more proper venue? Again is there anything we can file complaint wise that you can think of?
Greg, I love your blogs as they have been very useful while conducting research on my ongoing child custody modification case. My case is not being held in SC, however FL has adopted the UCCJEA and their statutes mirror SC’s. I filed a UCCJEA affidavit with my initial petition. The respondent filed one as well and my lawyer emailed it to me today. What I would like to get clarification on is “the names and present addresses of the persons with whom the child has lived during that period. I listed where my children had lived during the last five years and under the names and present addresses, I annotated who lived with them during that specific period and the address of that individual during that specific period, which was the same address that my children resided at. I noticed the respondent annotated the current address of the individual regardless of the specific period. Which party is correct? I’m leaning towards the respondent, although I don’t know what the intent of having the addresses is. I’m guessing if these individuals need to be contacted, their current address is on file?? I also noticed the respondent stated the children resided in two different states during the same time period. I thought temporary visits don’t count? On the face of the record, the court may get confused as to which state has subject-matter jurisdiction.
Hello my name is Richard Schultz, i have been primarily raising my 7 year old son full time for the last 4 years. Prior to that i was doing 50/50 with the mother. My son attended school in illinois for his kindergarten year 2014-2015 year. After his school year i moved to Edgerton Wisconsin, closer to family and better job. Since we moved june of 2015 he has attended school here in Edgerton. He was enrolled in extra programs along with football,basketball and baseball. At the end of this summer aug 8th to be exact she took my son to illinois (Rockford). Were she resides and enrolled him in school down there in some crappy charter school, she then filed an order of protection stating i threatened her over the phone. I beleive to keep my son in illinois. I have medical records, teacher statements, proof of extracurricular activies as well as a great living environment. Will Uccjea step in and take over jurisdiction? I filed a motion to the court asking for an order on jurisdiction as well as an answer to the order of protection! The emergency was denied on her behalf. I have been reading more into jurisdiction and would like wisconsin to take over jurisdiction. Please help.
I’m not a lawyer, but performed extensive research with my UCCJEA case. In other words take my recommendations with a grain of salt. I’m assuming the custody order and modification(s) state you are the primary physical custodian. Based on what you stated in your post, Wisconsin has jurisdiction (see Wisconsin statutes Chapter 822). I recommend registering the custody determination with the state of Illinois and Wisconsin. Once Illinois confirms registration, they can enforce an order for the return of the child made under the Hague Convention on the Civil Aspects of International Child Abduction as if it were a child custody determination. Last but not least, hire a lawyer whom is very familiar with UCCJEA. Good luck in your pursuit of justice!
My ex just serve me this paper my kids have live with me .. Sin they were born ..and after are separation .. How can have this paper dismiss .. The kids have been in the same school for the pass 5 yrs with me …pls help