CUSTODY JURISDICTION

 by

 CATHERINE HOLLAND PETERSEN

 Source: http://www.aaml.org/Articles/2001-03/Peterson-Custody.htm

 

The Uniform Child Custody Jurisdiction Act (U.C.C.J.A.) was written thirty years ago.  During the ensuing years, conflicts in interpretation prompted the adoption of the Parental Kidnapping Prevention Act (P.K.P.A.) by Congress (28 U.S.C. § 1738) and the creation of  the Uniform Child Custody Jurisdiction and Enforcement Act (U.C.C.J.E.A.) by the National Commission on Uniform State Laws.  The U.C.C.J.E.A. was written as a replacement for the U.C.C.J.A. in order to harmonize the provisions of the U.C.C.J.A. and the P.K.P.A. as well as other federal statutes such as the Violence against Women Act (18 U.S.C. § 2265).  The U.C.C.J.E.A. has now been adopted by Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Idaho, Iowa, Kansas, Maine, Minnesota, Montana, North Carolina, North Dakota, Oklahoma, Oregon, Tennessee, Texas, Utah, and West Virginia.  It will be considered this year in the District of Columbia, Indiana, Mississippi, Missouri, New Jersey, and Virginia.

HOME STATE PRIORITY.   If the parties to the initial custody dispute live in different jurisdictions, the first step is to check the custody statute adopted by the two states in question.  Under the U.C.C.J.A., which was adopted by all fifty states in one form or another, home state jurisdiction is no more significant than any other jurisdictional basis, unless the state changed the model act to give home state jurisdiction dominance.  On the other hand, the provisions of the U.C.C.J.E.A. mandate that home state jurisdiction be given priority in Section 201.

 

            SECTION 201.  INITIAL CHILD-CUSTODY JURISDICTION.

 

(a)        Except as otherwise provided in Section 204, a court of this State has jurisdiction to make an initial child-custody determination only if:

 

(1)       this State is the home State of the child on the date of the commencement of the proceeding, or was the home State of the child within six  (6)  months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;

 

(2)       a court of another State does not have jurisdiction under paragraph (1), or a court of the home State of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under Section 207 or 208; and,

 

(A)       the child and the child’s parents, or the child and at least one (1) parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and,

 

(B)       substantial evidence is available in this State concerning the child’s care, protection, training, and personal relationships;

 

(3)       all courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to the custody of the child under Section 207 or 208; or,

 

(4)       no court of any other State would have jurisdiction under the criteria specified in paragraph (1), (2), or (3).

 

(b)       Subsection (a) is the exclusive jurisdictional basis for making a child-custody determination by a court of this State.

 

(c)        Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient.

Consequently, in the initial dispute conceivably both states could claim jurisdiction under state law, one as the home state, the other as a significant connection state.

The P.K.P.A. does not have a specific provision which will function as a tie breaker in that situation.  It does not dictate which state can take initial jurisdiction, rather it provides for full faith and credit once a custody order has been entered.  It requires enforcement of the initial custody order only when the custody determination is made by the home state.  Other state custody determinations are not entitled to such recognition unless there is no home state.  Consequently, when it comes time to enforce the two orders the one issued by the home state will be the one entitled to full faith and credit.  That can provide a forceful argument in favor of the home state order.

The U.C.C.J.A., however, provides that custody determinations are entitled to enforcement even if they would be denied enforcement under the P.K.P.A.  Therefore within the borders of the significant jurisdiction state, its order would be valid under its law even though enforcement in the other jurisdiction or a third state would fail.

EMERGENCY JURISDICTION.  In addition to home state and significant connections jurisdiction, both the U.C.C.J.A. and the U.C.C.J.E.A. allow the assumption of jurisdiction based on an emergency.  Unfortunately, the case law under the U.C.C.J.A. has varying interpretations of emergency jurisdiction which have created problems.  Some states governed by the U.C.C.J.A. consider emergency jurisdiction a basis for a temporary order only until such time as the case can be considered in the proper jurisdiction. Other U.C.C.J.A. states impose no limit on the emergency jurisdiction, considering it on par with home state jurisdiction.  The different interpretations create the potential for conflicting custody determinations considered valid in the respective states.  If the two states in question both have adopted the U.C.C.J.E.A. then the problem is reduced.  The U.C.C.J.E.A.  mandates that emergency jurisdiction is temporary only.  If one state is governed by the U.C.C.J..A. and the other by the U.C.C.J.E.A. it is again possible that there will be two different orders issued which are considered valid under the different state laws.  The P.K.P.A. will only mandate enforcement of an emergency order until such time as the home state can assume jurisdiction.  This is in harmony with the U.C.C.J.E.A..  There is no problem until the emergency order issued by the U.C.C.J.A. state is expected to yield to a home state order subsequently issued by the U.C.C.J.E.A. state.  The same quandary could exist.  Under the individual state laws, each order would be considered valid, but under the P.K.P.A., the U.C.C.J.A. emergency order would only be enforceable until the home state order was issued.  Within the borders of the U.C.C.J.A. state, however, that would not carry any weight because the full faith and credit provisions of the law only apply to interstate controversies.

EXCLUSIVE CONTINUING JURISDICTION.   After the entry of an initial custody order, modification of that order is controlled by the P.K.P.A.  Other states shall enforce and shall not modify the initial order unless the issuing state has lost or relinquished jurisdiction.  The U.C.C.J.A. does not clearly state that the decree granting state has exclusive continuing jurisdiction to modify its own decree.  The result is that there have been conflicting custody decrees, based in one state on continuing jurisdiction and in the other on significant contacts.  Other problems have resulted from a difference in treatment between a visitation order and a custody order.  These distinctions have produced simultaneous proceedings and conflicting custody orders.

Another problem with continuing jurisdiction has been the lack of clarity in determining when a state with continuing jurisdiction has relinquished it.  As a consequence, one court could determine that a prior state had relinquished jurisdiction when, in fact, the prior court did not consider itself to have relinquished its jurisdiction.  Due process concerns have also been raised as a result of  the informality of the contact between the courts without notice or opportunity for the parties to be heard.

 

 

SECTION 202.  EXCLUSIVE, CONTINUING JURISDICTION.

 

(a)        Except as otherwise provided in Section 204, a court of this State which has made a child-custody determination consistent with Section 201 or 203 has exclusive, continuing jurisdiction over the determination until:

 

(1)       a court of this State determines that neither the child, the child and one parent, nor the child and a person acting as parent have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child’s care, protection, training, and personal relationships; or,

 

(2)       a court of this State or a court of another State determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this State.

 

(b)       A court of this State which has made a child-custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under Section 201.

 

 

SECTION 206.  SIMULTANEOUS PROCEEDINGS.

 

(a)        Except as otherwise provided in Section 204, a court of this State may not exercise its jurisdiction under this [article] if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another State having jurisdiction substantially in conformity with this [Act], unless the proceeding has been terminated or is stayed by the court of the other State because a court of this State is a more convenient forum under Section 207.

 

(b)       Except as otherwise provided in Section 204, a court of this State, before hearing a child-custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to Section 209.  If the court determines that a child-custody proceeding has been commenced in a court in another State having jurisdiction substantially in accordance with this [Act], the court of this State shall stay its proceeding and communicate with the court of the other State.  If the court of the State having jurisdiction substantially in accordance with this [Act] does not determine that the court of this State is a more appropriate forum, the court of this State shall dismiss the proceeding.

 

(c)        In a proceeding to modify a child-custody determination, a court of this State shall determine whether a proceeding to enforce the determination has been commenced in another State.   If a proceeding to enforce a child-custody determination has been commenced in another State, the court may:

 

(1)       stay the proceeding for modification pending the entry of an order of a court of the other State enforcing, staying, denying, or dismissing the proceeding for enforcement;

 

(2)       enjoin the parties from continuing with the proceeding for enforcement; or,

 

(3)       proceed with the modification under conditions it considers appropriate.

 

 

SECTION 110.  COMMUNICATION BETWEEN COURTS.

 

(a)        A court of this State may communicate with a court in another State concerning a proceeding arising under this [Act].

(b)       The court may allow the parties to participate in the communication.  If the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.

 

(c)        Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties.  A record need not be made of the communication.

 

(d)       Except as otherwise provided in subsection (c), a record must be made of a communication under this section.  The parties must be informed promptly of the communication and granted access to the record.

 

(e)        For the purposes of this section, “record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

 

CLARIFICATION OF “CUSTODY PROCEEDINGS”.  Does the U.C.C.J.A. apply to neglect, abuse, dependency, wardship, guardianship, termination of parental rights, adoption and protection from domestic violence proceedings?  Unfortunately, there have not been uniform interpretations of this question.  L.G. v. People, 890 P.2d 647 (Colo. 1995) (juvenile neglect proceedings are not “custody proceedings” under the P.K.P.A.).  The U.C.C.J.E.A. clearly answers the question.  Section 102(4) states:         

“Child-custody proceeding” means a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue.  The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear.  The term does not include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under [Article] 3.

 

BEST INTERESTS.    Because litigants and courts have been tempted to invoke the “best interests” language of the U.C.C.J.A. to legitimize what would otherwise be an inappropriate exercise of jurisdiction, the U.C.C.J.E.A. eliminates the term “best interests” in the jurisdictional considerations of a custody case.  The term is now left for the substantive phase of the dispute.

ENFORCEMENT OF CUSTODY DETERMINATIONS.  The most radical change in the U.C.C.J.E.A. from the U.C.C.J.A. is the inclusion of a uniform procedure for enforcement of custody and visitation orders.  The American Bar Association Center on Children and the Law produced a study called Obstacles to the Recovery and Return of Parentally Abducted Children.  The Obstacles Study documented that one of the major problems in custody matters today is the absence in both the U.C.C.J.A. and  P.K.P.A. of any uniform mechanism for enforcing the custody determinations which both mandated were to be enforced.  The U.C.C.J.E.A. takes the position that if custody or visitation orders cannot be rapidly enforced then it is tantamount to a loss of custody or visitation or a de facto modification of a custody determination.  It is equally important within the construct of the U.C.C.J.E.A. not to modify a custody determination in an effort to enforce it.  Article three (3) of the U.C.C.J.E.A. addresses this.

In a nutshell, if immediate enforcement of a visitation order, for example, is sought in Forum B, the petitioner must register the order of Forum A with the enforcement body (which may be a court or administrative agency at the election of the state) of Forum B (Section 304).  The registration must contain specific information and if immediate enforcement is sought, a specific request for enforcement of the custody or visitation order must be included in conformity with Section 308.    The intent of Section 308 is to use the speed of a Habeas Corpus proceeding in a uniform proceeding without transforming the enforcement forum into a modification forum.   It is no defense to the expedited proceeding to pursue a substantive discussion of the “best interests” of the child.  Such a discussion is specifically reserved for the forum with exclusive continuing jurisdiction to modify its order, or to the proper modification forum under Section 203.  If the petitioner is entitled to physical custody of the child under a valid order, the order will be enforced.

 

SECTION 304.  TEMPORARY VISITATION.

 

(a)        A court of this State which does not have jurisdiction to modify a child-custody determination, may issue a temporary order enforcing:

 

(1)       a visitation schedule made by a court of another State; or,

 

(2)       the visitation provisions of a child-custody determination of another State that does not provide for a specific visitation schedule.

 

(b)       If a court of this State makes an order under subsection (a)(2), it shall specify in the order a period that it considers adequate to allow the petitioner to obtain an order from a court having jurisdiction under the criteria specified in [Article] 2.  The order remains in effect until an order is obtained from the other court or the period expires.

 

The intent of this section is to make it clear that a temporary remedy to a visitation or custody denial is not intended as a permanent change in the order.

 

 

SECTION 307.  SIMULTANEOUS PROCEEDINGS.

 

 If a proceeding for enforcement under this [article] is commenced in a court of this State and the court determines that a proceeding to modify the determination is pending in a court of another State having jurisdiction to modify the determination under [Article] 2, the enforcing court shall immediately communicate with the modifying court.  The proceeding for enforcement continues unless the enforcing court, after consultation with the modifying court, stays or dismisses the proceeding.

 

 

SECTION 308.   EXPEDITED ENFORCEMENT OF CHILD-CUSTODY    DETERMINATION.

 

(a)        A petition under this [article] must be verified.  Certified copies of all orders sought to be enforced and of any order confirming registration must be attached to the petition.  A copy of a certified copy of an order may be attached instead of the original.

 

(b)       A petition for enforcement of a child-custody determination must state:

 

(1)       whether  the court that issued the determination identified the jurisdictional basis it relied upon in exercising jurisdiction and, if so, what the basis was;

 

(2)       whether the determination for which enforcement is sought has been vacated, stayed, or modified by a court whose decision must be enforced under this [Act] and, if so, identify the court, the case number, and the nature of the proceeding;

 

(3)       whether any proceeding has been commenced that could affect the current proceeding, including proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding;

 

(4)       the present physical address of the child and the respondent, if known;

 

(5)       whether relief in addition to the immediate physical custody of the child and attorney’s fees is sought, including a request for assistance from [law enforcement officials], and, if so, the relief sought; and

 

(6)       if the child-custody determination has been registered and confirmed under Section 305, the date and place of registration.

 

(c)        Upon the filing of a petition, the court shall issue an order directing the respondent to appear in person with or without the child at a hearing and may enter any order necessary to ensure the safety of the parties and the child.  The hearing must be held on the judicial day after service of the order unless that date is impossible.  In that event, the court shall hold the hearing on the first judicial day possible.  The court may extend the date of hearing at the request of the petitioner.

 

(d)       An order issued under subsection (c) must state the time and place of the hearing and advise the respondent that at the hearing the court will order that the petitioner may take immediate physical custody of the child and the payment of fees, costs, and expenses under Section 312, and may schedule a hearing to determine whether further relief is appropriate, unless the respondent appears and establishes that:

 

(1)       the child-custody determination has not been registered and confirmed under Section 305, and that:

 

(A)       the issuing court did not have jurisdiction under [Article] 2;

 

(B)       the child-custody determination for which enforcement is sought has been vacated, stayed or modified by a court having jurisdiction to do so under [Article] 2;

 

(C)       the respondent was entitled to notice, but notice was not given in accordance with the standards of Section 108, in the proceedings before the court that issued the order for which enforcement is sought; or,

 

(2)       the child-custody determination for which enforcement is sought was registered and confirmed under Section 304, but has been vacated, stayed, or modified by a court of a State having jurisdiction to do so under [Article] 2.

 

 

SECTION 310.  HEARING AND ORDER.

 

(a)        Unless the court issues a temporary emergency order pursuant to Section 204, upon a finding that a petitioner is entitled to immediate physical custody of the child, the court shall order that the petitioner may take immediate physical custody of the child unless the respondent establishes that:

 

(1)       the child-custody determination has not been registered and confirmed under Section 305 and that:

 

(A)       the issuing court did not have jurisdiction under [Article] 2;

 

(B)       the child-custody determination for which enforcement is sought has been vacated, stayed, or modified by a court of a State having jurisdiction to do so under [Article] 2; or,

 

(C)       the respondent was entitled to notice, but notice was not given in accordance with the standards of Section 108, in the proceedings before the court that issued the order for which enforcement is sought; or,

 

(2)       the child-custody determination for which enforcement is sought was registered and confirmed under Section 305, but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under [Article] 2.

 

(b)       The court shall award the fees, costs, and expenses authorized under Section 312 and may grant additional relief, including a request for the assistance of [law enforcement officials], and set a further hearing to determine whether additional relief is appropriate.

 

(c)        If a party called to testify refuses to answer on the ground that the testimony may be self-incriminating, the court may draw an adverse inference from the refusal.

 

(d)       A privilege against disclosure of communications between spouses and a defense of immunity based on the relationship of husband and wife or parent and child may not be invoked in a proceeding under this [article].

 

Another unique suggestion of the U.C.C.J.E.A. is the warrant directed to law enforcement to assist in the enforcement of a custody order.  While a provision available in California for a number of years and used with success, it will be a novel provision for many jurisdictions.