Seattle, WA asked in Family Law, Child Custody and Domestic Violence for Nebraska

Q: My friends daughter was taken from Idaho to Washinton and landed in Nebraska. They have a parenting plan issued by idaho

They both have legal custodial and physical custody with the father having 4 out of 7 days giving him primary custodial care. He went to jail for domestic violence against his girlfriend and 4 accounts of misdemeanors for the children. His mom is there now and we think she is trying to get emergency custody. Can my friend still file emergency custody in nebraska and superced the grandmother's filings? Or what is the best way to go about this? The father has not allowed the mother to have her on her days and does not allow her to know where he resides.

1 Lawyer Answer
Julie Fowler
Julie Fowler
  • Divorce Lawyer
  • Omaha, NE
  • Licensed in Nebraska

A: The first question when dealing with interstate issues is usually jurisdiction. Generally, the Court that entered the original order is the Court that continues to handle the custody case until both parents have moved from that state. Thus, if the order was issued in State A and there is at least one parent still residing there, then usually you need to bring up your custody issues in State A and the laws in State A apply. There can be some variation in custody laws from state to state so you want to make sure you seek legal advice in the correct state. From your question, there isn't enough information to tell what state's laws apply in your situation.

Even if a state does not have jurisdiction over the custody case, you can sometime seek an emergency custody order in another jurisdiction. However, the Court would only have jurisdiction for a short period of time, just enough to address the emergency, and then further rulings and orders must be handled by the state that has jurisdiction. Thus, sometimes it makes sense to file for emergency custody in a state that does not have ongoing jurisdiction, but often it makes sense to file for emergency custody in the state that will have ongoing jurisdiction over the case.

If both a parent and a non-parent (like a grandparent) are fighting over custody, then you might actually have two cases pending. One being a custody case between the parents and another being a guardianship case between the non-parent and parent. There is a parental preference. A parent has constitutional rights to their children and is generally the first choice for custody of a child. However, a child also has rights too. The Court has to look at the "best interests" of the child. Often it is a matter of balancing the different rights of the parties and of the child and keeping the child's best interests as the paramount factor. If the mother has not had a lot of contact with the child in some time and placing the child, at least temporarily, with grandma allows the child to remain in the child's current city, school, etc., a judge might find that the child should be placed with grandma, at least until on a temporary basis, so that the child can remain at their current school, etc. until more information about the situation is known to the Court. On the other hand, if the child has not been in a good situation for some time, the Court may want to place the child with the other parent if they offer stability and safety that the child would not have if placed with grandma.

Your friend needs to speak with an attorney about her situation and options. There is often some strategy in these situations as to where to file and when. If the father is incarcerated and the mother is seeking sole custody, it sounds like she needs to file a custody action at this time.

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