Choosing Where to File for Custody

Filing a child custody case in the right location is important.

Sometimes, the right location to file a child custody case is readily apparent. For example, if the mother, father, and child have all lived in Rock Island County, Illinois for their entire lives, then the only place to file is Rock Island County, Illinois. The same answer would be true if the child and parents have all lived in Scott County, Iowa for their whole lives, in which case Scott County, Iowa is the right place to file.

However, the situation becomes more complex when the parties and child live in different states (or counties within a state), or when a parent or child has recently moved from one location to another. Generally, the state in which a child has resided for the last 6 months is the correct place to handle child custody. However, there are situations where the child’s home state isn’t readily apparent, such as where the parents have exercised shared care of the child and each lives in a different state. Such a situation occurs somewhat frequently in areas like the Quad Cities, where one parent may live in Davenport, IA and the other will live a few miles away in Rock Island, IL. Other times, both parties may move from one state to another, and then have a need to address custody. For example, the parents of a child may move from California to Iowa with their child, and then separate after a few months.

Where one or both parents are in the military, and have moved from one location to another due to military orders, that can also affect the analysis. That is because a person who moves due to military orders can assert that they remain domiciled in their home state. Some states even have laws that specificity address that situation for military service members.

Filing for custody in the right state is important because if a person files in the wrong state, the court in that wrong state may dismiss the case due to a lack of jurisdiction. That can pose quite a problem, as the parents and child can be in limbo as to custody and visitation. Even worse for the parent who picked the wrong state, the other parent may be able to swiftly file in the correct state and obtain a significant advantage.

Within a case, the custody factors applied by the court to decide how to allocate custody and visitation will vary in each state. That is because each state has a different set of facts set forth in its custody statutes, and has different appellate court and supreme court caselaw that interprets those factors. That means that a custody case that may result in one outcome in Iowa may result in a different outcome in Illinois.

Child support calculations also vary noticeably between states. An as example, Illinois child support guidelines are such that parents with shared care will generally not have either parent paying child support, while in Iowa there is almost always child support when there is shared care. In that way and others, the location of a custody case can affect the substantive outcome of the case.

Even within a state, the issue of venue may arise. Venue refers to which county in the state is the appropriate county to file the case. Filing in the wrong venue can result in the court moving the case to the correct venue, or even a dismissal of the case. Picking the wrong venue can result in delays to the case, wasted travel time, and other negative consequences.