The Six-Month Rule and Its Exceptions

A rule that says six consecutive months sounds like the kind of thing a calendar settles. In practice it is the most litigated element of interstate custody law, because the lives it is applied to include separations, trial reconciliations, extended stays with relatives, summers in another state and moves that were meant to be temporary and were not.

Counting the period

Backwards from commencement. The six months runs immediately before the proceeding began, so the anchor is the filing date rather than any event in the family's history. Nothing that happens after filing changes the count.

Commencement is a procedural question. Which document starts a proceeding, and when it is treated as filed, is answered by the law of the state where it was filed. In a contested situation where both parents are preparing to file, days can matter.

Living, not merely present. The child must have lived in the state, which describes where their life was based rather than a tally of nights. A child based in one state throughout has lived there even with substantial time spent elsewhere.

With a parent or a person acting as one. The living arrangement has to include a parent or someone standing in that role. A child living independently, or with a relative while both parents were elsewhere, raises a distinct question about whose household it was.

The period must be unbroken. Two separate stretches of four months do not aggregate. What prevents that rule from being brutal is the treatment of temporary absences, which is where the analysis actually happens.

Temporary absences

They count as part of the period. The act provides directly that a period of temporary absence is counted as part of the six months. Without that provision almost no family would satisfy the definition.

The act does not define temporary. Courts have filled the gap with a practical approach that asks whether the family's arrangements changed or merely paused.

Indicators of a pause. The home retained, the school place held, possessions left in place, a return date, employment continuing, a lease still running. Each of these says the base did not move.

Indicators of a departure. A lease ended, furniture moved, a new school enrollment, a job started, a new lease signed. These say a new life began, and a new period with it.

Intentions asserted afterwards carry little. Both parents in a contested case will characterize the same absence in opposite ways. What decides it is the documentary record made at the time, which is why the ordinary paperwork of a household — leases, enrollments, employment records — turns out to matter so much, as it does throughout how a child's home state is identified.

The infant rule

A separate definition for the very young. For a child less than six months old, the home state is the state in which the child has lived since birth with a parent or a person acting as a parent.

It exists out of necessity. A newborn cannot satisfy a six-month requirement, and without a special rule no state would qualify for any child under half a year old.

Temporary absences apply here too. Time in a hospital in another state, or a visit to family, is treated the same way as under the general rule.

Birth in a state does not settle it. Where a child is born in one state and the household is in another, the question is where the child has lived since birth, not where the delivery occurred. A birth during a visit does not create a home state.

The rule expires. Once the child passes six months, the general definition applies, so the answer can change with the child's age even if nothing about the family has altered.

When the period does not close

Recent moves produce a gap. A family that relocated two or three months before filing has no home state, and this is common rather than exotic.

The case does not fail. The act moves to a significant-connection analysis, allowing a state where the child and a parent have a real connection, and where substantial evidence about the child exists, to take jurisdiction.

Evidence tends to point backwards. Schools, doctors, therapists and neighbors are usually in the state just left, which frequently makes it the appropriate forum despite the family having gone.

Wrongful removal does not start a clock. A parent who takes a child across a line without authority does not build a home state by waiting, and courts have power to decline jurisdiction where a party has behaved unjustifiably, together with power to order return and costs.

Two courts may need to speak. Where proceedings are commenced in two states close together, the act requires the courts to communicate and one to defer. That mechanism, and what happens when it is not used, is described in when two states both claim authority.

Practical consequences for families

Keep the ordinary paperwork. Leases, school enrollment records, employment letters and medical registrations are what establish where a child's life was based. Families going through a separation rarely think of these as evidence and they are precisely the evidence a court wants.

Document the character of an absence at the time. Where a child goes to stay with relatives for an extended period, a short written agreement between the parents recording that the arrangement is temporary and stating a return date costs nothing and settles an argument that can otherwise consume a hearing.

Understand what a move starts. Relocating begins a new six-month period in the destination and does not immediately end the old state's status, since the old state's period ran until departure. There is a window in which neither is the home state, described in how a child's home state is identified.

Do not assume waiting improves the position. Where a removal was without authority, time does not cure it, and the delay may itself become an issue in the proceedings that follow.

Take the jurisdictional question first. Money spent arguing about arrangements in a court that turns out to lack jurisdiction is money spent twice. The order of operations matters more here than in almost any other family matter, for the reasons set out in registering a custody order in a second state.

There is a further wrinkle that catches families whose children split time between two households in different states. Where a child spends the school year with one parent and long vacations with the other, the school-year state is generally the home state, because that is where the child's life is based and the vacations are temporary absences. The arithmetic can look close — nine months against three — and the analysis is not really arithmetical: it asks where the base is. A parent who assumes that accumulating enough weeks will shift the answer has misread the test, and a parent who extends a summer stay in the hope of doing so has usually created a wrongful retention rather than a new home state.