I am in MO and he is in VA, never married and our child was born here in MO with a current custody agreement in MO. We have joint physically/legal custody with me as the primary. There is no abuse, neglect, I am a good parent, cooperate and follow court order but we do not get along ! So with all that said can VA get jurisdiction just because he doesn't like the agreement, me or fact that I have primary? He states he has an attorney and I will be getting a subpoena from VA.
If neither you or the child resides in VA [ and continue to reside in the state that issued the custody orders or have been a resident of a new state for 6 months or more] there is little possibility of VA having jurisdiction over you or over the issue of custody of the child. However, if you are in fact served with legal pleadings from VA, do not ignore them, you should consult with an Attorney in VA as to how to correctly respond to them so that you ex is not able to hijack the proceedings to his new state. You might also want to discuss with that Attorney the possibility of either sanctions against your ex or his attorney or the obtaining of fees & cost from your ex for filing an action that would appear to clearly have no jurisdictional basis.
Interstate child custody jurisdiction disputes are decided under the Uniform Child Custody Jurisdiction Enforcement Act, as codified in Virginia in Chapter 7.1 of Title 20 of the Code of Virginia, Virginia Code Sections 20-146.1 to 20-146.38. The "home state" is the state where the child has lived with a parent for the last 6 months before the action was commenced. Under Virginia Code Section 20-146.14, Virginia does not have jurisdiction to modify an initial child custody determination, unless Virginia is the home state and no other state is the home state, the parent no longer lives in the other state with the child, or there is an emergency and the child has been abandoned in Virginia.
The UCCJEA is designed to prevent parental kidnapping of children, where a parent takes a child and escapes to another state in order to gain an advantage. To do this, the UCCJEA favors the state where the child has been living with a parent for the longer period of time during the past 6 months. The UCCJEA does allow for courts in different states to correspond, or communicate with each other, and for evidence to be taken in another state, but the court with decision-making power will be the home state.
Missouri adopted the UCCJEA into law in 2009. You should consult with a Missouri family law lawyer to discuss your options and the best course of action.
By "custody agreement", we assume you mean "custody order" (i.e. it has been signed by a Judge). If, in fact, you do not have an order, then MO is still likely the appropriate jurisdiction for hearing an initial petition for custody, as the child has resided there for the six preceding months.
In the event you only have an agreement, you should speak with an attorney about having it incorporated into an order. An agreement is merely a binding contract between two or more people. An order has the ability to be enforced by the court, and the party seeking enforcement has the court's contempt power at their disposal.
