Litigating child custody does not, by itself, create personal jurisdiction for child support

Posted Sunday, November 23rd, 2014 by Gregory Forman
Filed under Child Custody, Jurisdiction, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

Due to an increasingly mobile society, child custody litigation often moves to different states over a child’s minority. When both parents and the child no longer live in the state that issued the most recent child support order, or when the issuing state declines modification jurisdiction because the child has been absent from the state for a period of years, child custody jurisdiction generally moves to the state where the child now lives. The non-custodial parent must now litigate child custody in the other parent’s state. Often times such parents need to defend a modification case brought by the other parent. Other times such parents need to bring a child custody or visitation modification case in the other parent’s state of residence. A common fear is that by litigating child custody in the other parent’s state of residence, the non custodial parent opens him or herself up to child support jurisdiction in the other parent’s state.

This fear should be unfounded. The Uniform Child Support Enforcement and Jurisdiction Act (UCCJEA) contains a provision that, “A party to a child custody proceeding, including a modification proceeding, or a petitioner or respondent in a proceeding to enforce or register a child custody determination, is not subject to personal jurisdiction in this state for another proceeding or purpose solely by reason of having participated, or of having been physically present for the purpose of participating, in the proceeding.” In South Carolina that provision is contained in S.C. Code § 63-15-316 (A). However times when I have had to locate a similar provision in other states’ UCCJEA, that provision has always existed within that state’s law.

A United States Supreme Court decision, Kulko v. Superior Court of California, 436 U.S. 84, 91 (1978), shows that jurisdiction can exist for child custody without it also existing for child support. Yet parents still worry that by appearing in a child custody proceeding outside of their state of residence they open themselves up to child support jurisdiction in that same state. Even experienced family court attorneys have been known to incorrectly advise clients of this risk. However, under the UCCJEA, a parent is entitled to defend or bring a child custody proceeding in the other parent’s state of residence without opening him or herself up to defending child support there too.