The Moving Van and the Home State
Lena left her husband, Todd, and moved with their 7-year-old daughter, Ava, from State A to State B 11 weeks ago. Ava had lived in State A her entire life. Todd remained in the home in State A. Twelve days ago Todd filed a petition for divorce and custody in State A, in the county where the family lived. Lena was served three days ago. State A requires six months of residency before a divorce may be filed; State B requires six months of domicile. Lena wants to file in State B because she believes its custody rules are better, and she asks whether she can ignore Todd's case because 'Ava is here now.' She has text messages showing Todd's work schedule and a school enrollment letter from State B. She also asks the paralegal to tell her which state will give her the better result.
1. Under the UCCJEA, which state has home-state jurisdiction over Ava, and can Lena file for custody in State B? Explain.
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The UCCJEA defines home state as the state where the child lived with a parent for at least six consecutive months immediately before the proceeding, or was within six months of the start and a parent still lives there. Ava lived in State A her entire life, and Todd filed there 12 days ago. State A is Ava's home state. State B has only 11 weeks, less than six months.
Lena cannot create home-state jurisdiction by moving; physical presence alone is not enough. State B lacks initial child-custody jurisdiction unless State A declines and no other home state exists, or emergency jurisdiction applies, which is not shown. Lena should not ignore the State A case; doing so risks a default order. The paralegal should calendar the response deadline, gather the child's residence timeline, school and medical records, and prepare a draft affidavit for attorney review.
2. What should the paralegal do about Lena's request to 'tell me which state will give me the better result'?
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That is a request for legal advice and a prediction that a paralegal cannot give. The paralegal should explain the limits of the role, offer to schedule an attorney consultation, and provide factual information about deadlines and documents. The paralegal can explain the difference between jurisdiction and venue in general terms only after attorney approval, but should not compare custody outcomes or advise forum shopping.
The client should be told that ignoring a served petition has consequences and that an attorney must evaluate whether to respond, seek a stay, or challenge jurisdiction. Document the request and the referral. If the client insists, escalate to the attorney. This protects against unauthorized practice of law and preserves the client's case.
3. Identify venue issues and the initial documents the paralegal should assemble.
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Venue in a custody case is generally the county where the child resides or where the responding party resides, depending on statute. Todd filed in the county where the family lived; that likely matches Ava's home-state residence and may be proper. Lena's new county in State B is not the home-state venue.
The paralegal should assemble:
- Ava's birth certificate and residence timeline.
- The State A petition and proof of service.
- School enrollment and medical records.
- Lena's lease and move date.
- Text messages about Todd's schedule.
- A proposed response calendar.
- A list of potential witnesses.
The attorney decides whether to file a response, a jurisdictional motion, or seek temporary orders. The paralegal should not file anything without review.