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As Americans we live in a mobile society, with a high divorce rate. As a result, in many cases, the issue of what state has proper jurisdiction to determine a child's custody proceeding arises. This article will address the issue of jurisdiction in interstate and international child custody proceedings, and provide an overview of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which has been adopted by 46 states, the District of Colombia and Puerto Rico, to address jurisdictional issues in interstate custody disputes. Uniform Child-Custody Jurisdiction and Enforcement Act (1997), 9 (1A) U.L.A, 657 (1999). It is important to note that discussion of child custody jurisdiction under the UCCJEA in this article, can also be extended to proceedings dealing with visitation. The article will begin by discussing the evolution of interstate custody jurisdiction jurisprudence including the Uniform Child Custody Jurisdiction Act (UCCJA) and the federal Parental Kidnapping and Prevention Act (PKPA). Uniform Child Custody Jurisdiction Act, 9 (1A) U.L.A. 271 (1999); Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A. The article will also explain the current requirements under the UCCJEA for states to obtain jurisdiction in an interstate custody dispute.
The Evolution of Interstate Custody Jurisdiction: The History of the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention and Act (PKPA)
The Uniform Child Custody Jurisdiction Act (UCCJA)
In 1969 the Uniform Child Custody Jurisdiction Act (UCCJA), promulgated by the National Conference of Commissioners on Uniform State Laws, was enacted in all 50 states, the District of Colombia, the Virgin Islands and Puerto Rico, to address the issue of multiple states issuing competing custody orders for the same child. Before the enactment of the UCJJA state courts throughout the United States could exercise jurisdiction over a child custody proceeding based solely on a child's presence in that state. As a result, many states issued new custody determinations which were contrary to determinations previously made by a court of another state, creating a legal climate that encouraged forum shopping and kidnapping of children across state lines.
While the adoption of the UCCJA was a step forward in resolving the complicated issue of jurisdiction of interstate child custody disputes, the Act fell short in many aspects. Different states, in choosing to ratify the Act, made a number of individual changes resulting in inconsistencies from state to state and continued confusion. Additionally, the UCCJA was vague in many areas. For example, the UCCJA did not clearly delineate which types of custody proceedings the Act applied to and it was unclear whether the UCCJA applied to guardianship, child-protective or adoption proceedings, etc. Furthermore, the UCCJA did not make clear whether a state which makes an initial custody determination retains continuing jurisdiction over the child in making future determinations. Perhaps most importantly, the UCCJA provided no mechanism for enforcement of custody orders across state lines.
The Parental Kidnapping Prevention Act
The Parental Kidnapping Prevention Act (PKPA) was enacted by Congress in 1980 to address jurisdictional issues that continued to exist after the adoption of the UCCJA and to ensure more consistency between states. Significantly, the PKPA improved upon the UCCJA by requiring that states refrain from exercising jurisdiction in custody matters if a custody proceeding was pending in another state. The PKPA also provided that the court which makes the initial determination in a custody case retains "exclusive continuing jurisdiction" in all future custody matters regarding that child, so long as the court which made the determination did so consistently with the provision of the PKPA and either the child, or any contestant from the original proceeding, continues to reside in the state. Furthermore, the PKPA required that notice of a custody proceeding be provided to biological parents or persons who have physical custody of the child. The PKPA also established a mechanism for enforcement of custody orders across state lines.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
In 1997 the National Conference of Commissioners on Uniform State Laws approved, and recommended for enactment in all states, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA was adopted to bring the UCCJA into compliance with federal laws such as the PKPA and the Violence Against Women Act (VAWA). As of June 2007, the UCCJEA had been enacted by 46 states and the District of Colombia. Missouri, Massachusetts, New Hampshire and Vermont, as well as the territory of Puerto Rico, have yet to adopt the UCCJEA.
Changes Made from the Original UCJJA
Among other things, the UCCJEA was intended to expand upon the requirements of the UCCJA by prioritizing "home state jurisdiction" (as described below), providing clarification for emergency jurisdiction, establishing an enforcement mechanism, and clarifying what types of proceedings are governed by the act.
UCCJEA applies to almost all cases involving questions of child custody, including, child abuse, child neglect, dependency, guardianship, termination of parental rights and domestic violence proceedings. The UCCJEA does not apply in adoption proceedings, nor does it apply to children/youth 18 years of age or over.. The UCCJEA also does not apply to an "an Indian Child" as defined in the Indian Child Welfare Act 25 U.S.C. §1901.
Determining Jurisdiction Under the UCCJEA
The Initial Custody Determination:
The "Home State"
The first question to ask in making the determination of which state has jurisdiction to hear an interstate custody dispute under the UCCJEA is, what is the "home state" of the child? Section 201 of the UCCJEA states that only the "home state" of the child will have jurisdiction to make the child custody determination in an interstate custody dispute. Under section 201 a "home state" is defined as the state where a child has resided for at least six consecutive months, prior to the commencement of the action with either a parent or a person acting as a parent.
Section 201 goes on to define a "person acting as a parent" as someone, other than a parent, who has physical custody of the child at the time the custody proceeding is commenced, or a person who had physical custody of the child for a period of at least six consecutive months within one year of the commencement of the custody proceeding.
Section 201 of the UCCJEA requires that the state exercising jurisdiction must be either:
Pursuant to Section 201, in cases where the child in question is under six months old, the "home state" can be defined as any state that the child lived from birth with a parent or a person acting as a parent.
"Significant Connection" States
Under section 201, if no "home state" exists for the child in question, a state will have jurisdiction to hear a custody determination if the child, parents, or at least one person acting as a parent, has a "significant connection" to the state. For purposes of this discussion I will refer to these states as "significant connection" states. A "significant connection" state can also exercise jurisdiction under section 201, in instances where the "home state" has determined that the "significant connection" state would be a more appropriate judicial forum to address the custody issue. It is important to note that the Act does not define the term "significant connection," instead it leaves the interpretation of the term to the discretion of state courts.
In order for either a "home state" or "significant connection state" to have jurisdiction to hear a custody proceeding there must be "sufficient evidence" in the state concerning the child's "care protection, training, and personal relationships."
Exclusive Continuing Jurisdiction
The UCCJEA, like the PKPA, requires that the state that made the initial custody determination retain "exclusive continuing jurisdiction" regarding the custody determinations of a child. Pursuant to section 202, the court which made the initial custody determination will retain jurisdiction unless:
Temporary Emergency Jurisdiction
Pursuant to section 204, in emergency cases, a court which is not located in either a "home state" or " significant connection" state may exercise "temporary emergency jurisdiction" over a matter regarding child custody if the child in question is present in the state. Under section 204, a court may exercise "temporary emergency jurisdiction" if a child has been abandoned, or in cases where it is it is necessary to intervene to protect the child, sibling(s) or a parent of a child who has been subjected to, or threatened with, abuse or mistreatment.
Determining Jurisdiction in International Cases
Pursuant to Section 105 of the UCCJEA, a foreign nation shall be treated as a "state" for purposes of the UCCJEA, so long as custody laws of the foreign nation do not substantially violate "fundamental principles of human rights." However, for the UCCJEA to apply, in cases where the court of a foreign nation has made a jurisdictional determination regarding custody, the determination must have been based on factual circumstances in substantial conformity with the UCCJEA jurisdiction requirements.
Enforcement of Custody Orders Under the UCCJEA
Section 312 of the UCCJEA requires that orders issued in accordance with the Act be afforded full faith in credit in other states. Section 303 of the UCCJEA requires that courts recognize and enforce child custody determinations made by states in accordance with the Act, and it specifies that a court may utilize all remedies available under the state's to enforce the custody determination of another state. Section 304 provides that a custody determination made by one state may be registered in other states without a request for enforcement of the order.
In order to zealously represent clients, is imperative that attorneys handling interstate custody disputes acquaint themselves with the laws of the states in which the custody determination could be made, in order to determine where to file a custody case, or whether a change in venue is warranted. To further this end, attorneys representing a client in an interstate custody dispute should familiarize themselves with the provision of the PKPA as well as the UCCJA or UCCJEA, depending on the states involved.
About the Author
Cassandra Mae Kelleher is currently is employed as Associate Counsel to the New York State Assembly where she serves as counsel to the Assembly's Standing Committees on Children and Families and Social Services. Prior to working for the Assembly, Ms. Kelleher worked as a child protective attorney for the New York City Administration for Children's Services.