Can You Take Child Custody to Federal Court?

By Heather Frances J.D.

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When parents divorce, typically, the court decides child custody and child support issues as part of the divorce decree. Custody issues are determined by state law in the state where the parents divorce, as long as the state has proper jurisdiction, or legal authority to hear the case, which is based on the child living in the state where the divorce takes place.

Federal Courts Have Limited Jurisdiction

Federal courts are not designed to decide child custody disputes, and few federal laws address child custody. Although many state laws address custody, including a commonly accepted jurisdiction act, parents generally cannot take their custody disputes to federal court. If a parent is not happy with the decision the state divorce court has made, his recourse is to appeal the state court's decision to a higher state court.

Indian Child Welfare Act Cases

The Indian Child Welfare Act, passed in 1978, is a federal law that governs custody and adoptions of Native American children. Parents whose children are Native American can take their custody disputes to federal court, based on provisions in this act. For example, a custody dispute that is decided one way by a tribal court and another way by a state court may be taken to federal court for a final decision.