Vol. 9, No. 5, Pg. 22. Creating or Defeating South Carolina Jurisdiction in Multi-State Custody or Support Actions.

• Author: By Gregory S. Forman

South Carolina Lawyer

1998.

Vol. 9, No. 5, Pg. 22.

Creating or Defeating South Carolina Jurisdiction in Multi-State Custody or Support Actions

22Creating or Defeating South Carolina Jurisdiction in Multi-State Custody or Support ActionsBy Gregory S. FormanHistorically high rates of divorce and out-of-wedlock births combined with an increasingly mobile society have created a situation in which a family law practitioner is frequently faced with multi-state jurisdiction issues in child custody and support actions.

Though the rules governing jurisdiction are relatively simple, they can be difficult to understand because they are often counterintuitive. Frequently a state will have jurisdiction to determine child custody, but not child support. Often a state will have exclusive jurisdiction to determine custody when the child has not lived there for years.

The initial support case involves issues of personal jurisdiction, while the initial custody case involves subject matter jurisdiction. Modification of support and custody orders involve a completely different set of (federal) rules. Furthermore, whether it is your client's state of residence or the opposing party's state of residence that issues a support or custody decree can have unexpected consequences that are often not realized until long after the case is finished, making it a ripe area for claims of malpractice.

This article will explain the basic law regarding the creation and modification of multi-state custody and support orders, give examples of the typical issues that may confront a family law practitioner and provide helpful hints on using the rules to a client's advantage. This article is not meant to be a complete explanation of jurisdictional issues but is meant to cover the rules that will apply in most cases. To avoid pronoun confusion, the examples presume a setting with a custodial mother, a non-custodial father and one child, though the same rules would apply if the father has custody or if there is more than one child.

Reasons for Seeking Jurisdiction in a Client's Home State

There are three important reasons for attempting to have jurisdiction in a client's state of residence and attempting to defeat jurisdiction outside a client's state of residence--ease of litigation; enforcement; and modification.

It is simply easier to litigate support and custody (especially custody) in a client's state of residence. Though South Carolina law has provisions for transmission of evidence from an out-of-state party in custody cases (S.C. Code Ann. § 20-7-820) and support cases (S.C. Code Ann. § 20-7-985), it is obviously easier to litigate these cases where a lawyer has easy access to the client and his or her witnesses. Trying to effectively present to a South Carolina court a clear picture of a client's life in Seattle, Wash., for example, can be an expensive, frustrating task.

Since custody and support orders can often be multi-faceted and of extended duration, they present multiple opportunities for enforcement issues to arise, i.e., Rules to Show Cause. Enforcement is a major reason for trying to maintain jurisdiction in a client's home state.

Minor violations of family court orders can usually be handled with a letter or some negotiation, but if a client has to travel out of state to enforce an order, enforcement becomes difficult. And, if a client has to travel out of state to defend a Rule to Show Cause, the other party has less incentive to negotiate before resorting to litigation.

Occasionally, an out-of-state father will submit to South Carolina jurisdiction after his lawyer has informed him that South Carolina support laws are not that different than his own state's laws. He is often surprised to find he has to travel to South Carolina every time he is charged with violating the order, even if the violations are minor or corrected prior to the hearing.

Finally, for reasons explained below, the power to modify an existing support or custody order is based on one party's (or the child's) continuing residence in the issuing state. If the custody or support order is entered in a client's home state, he or she retains some measure of control over the location of subsequent modification actions.

Modification of Existing Support and Custody Orders

The first thing to do when a potential client has questions regarding a multi-state support or custody case is to ask about prior orders. The reason is that the rules regarding initial custody and...