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January 01, 2018 Jurisdiction

Roadblocks: The Court's Jurisdiction or Authority to Act

By: Kathleen A. Hogan

Many of the articles in this issue focus on creative ways to break down or work through various roadblocks that may be encountered in the course of legal representation and a legal proceeding. However, when the roadblock arises from the court’s lack of jurisdiction, there will be occasions when attempting to avoid or ignore the roadblock will not be successful and may ultimately raise professional liability concerns.

If a jurisdictional roadblock is suspected, it will first be imperative to identify whether the concern relates to personal jurisdiction over one of the parties to the proceeding or contemplated proceeding or whether the roadblock relates to the subject matter jurisdiction of the court.

Personal Jurisdiction

If the concern relates to a court’s lack of jurisdiction over one of the parties, this represents a solvable problem. A lack of personal jurisdiction can always be waived. For example, if there are cost savings, convenience factors, shorter timelines, or other practical considerations that make a particular forum beneficial, it is not uncommon for a party to agree to submit to the jurisdiction of a court that would not otherwise have personal jurisdiction over him or her. Such a waiver sometimes comes in the form of a deliberate written agreement regarding personal jurisdiction. Such a waiver also sometimes comes as a result of participation in the proceeding without raising the claimed lack of personal jurisdiction at the outset. In short, the lack of personal jurisdiction over a litigant can be resolved by express or implied waiver.

The lack of personal jurisdiction can also be overcome by service of process within the forum. However, in the realm of family law, some states deem service of process invalid if it took place when the individual was in the state purely and only for parenting time. Other states view service as invalid if the individual is in the state only for attendance at a court proceeding. Still other states impose no such distinctions.

Thus, it is important to know your applicable rules. Keep in mind that the applicable principles may not be specific to family law but may well be in the statutes, rules, or cases that govern civil litigation generally.

If the opposing party can’t be found to establish personal jurisdiction by service of process or he or she is not willing to voluntarily participate in the proceeding, counsel will need to consider whether the court’s authority to enter orders relating to the status of the marriage or relating to other issues that do not require personal jurisdiction over the opposing party will provide worthwhile relief. For example, a divorce decree can typically be obtained even if the court lacks personal jurisdiction over one of the parties to the marriage. Similarly, orders dividing real estate or other assets located within the forum state can typically be obtained even if the court lacks personal jurisdiction over the opposing party. However, that approach is not going to provide a useful outcome if there is no marriage to be dissolved and the client is seeking child support or other financial orders that would impose payment obligations on the party beyond the personal jurisdiction of the court. Similarly, ending the marriage may not be a good partial solution if the client is also in need of alimony, spousal support, or a division of the other party’s retirement account.

The key question is not whether you could persuade a local judge to enter orders on issues beyond the status of the marriage. (The answer to that question will often be “yes.”) The real question is whether the default order obtained in the absence of personal jurisdiction over the opposing party will be entitled to full faith and credit so as to be recognized outside the forum. For example, one of several keys to enforcement of child and spousal support orders in other states is that the issuing state must have had personal jurisdiction over both contestants. See 28 U.S.C. § 1738B.

Subject Matter Jurisdiction

If the jurisdictional obstacle relates not to personal jurisdiction over one of the parties but to the subject matter jurisdiction of the court, the same kind of workaround approaches are not going to be useful or advisable. A lack of subject matter jurisdiction is not something that can be waived by the parties. Similarly, parties cannot confer subject matter jurisdiction on a court that does not otherwise have such jurisdiction regardless of when or how they attempt to do so. Perhaps most importantly, orders entered by a court lacking subject matter jurisdiction are not entitled to full faith and credit recognition in other states. As a result, the most genuinely useful thing   a lawyer can do when faced with a lack of subject matter jurisdiction is to promptly refer the client to counsel in the state that does have subject matter jurisdiction.

The lack of subject matter jurisdiction occurs in family law proceedings most frequently in custody and visitation proceedings governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and in proceedings to establish, enforce, or modify child support governed by the Uniform Interstate Family and Support Act (UIFSA). (Both of those uniform acts are discussed in detail in the Spring 2017 issue of the Family Advocate, which deals with uniform laws. See Uniform Laws for Family Law, Fam Advocate, Spring 2017, Vol. 39, No. 4.) When the prospective client is residing in the state where the lawyer practices and is physically present in the lawyer’s office, the inclination is to assume there must be something the lawyer can do to help that client. However, a key point to remember is that the presence of one of the litigants or prospective litigants in the state does not, alone, establish or determine subject matter jurisdiction. As well, it is possible to waste substantial amounts of time and money for no useful purpose if there is an attempt to proceed in a court that lacks subject matter jurisdiction.

Lack of subject matter jurisdiction occurs in family law proceedings most frequently in UCCJEA custody and vistation proceedings and UIFSA child support proceedings.

If the barrier to subject matter jurisdiction arises out of the UCCJEA, on occasion, it may be possible to obtain emergency orders in a forum that lacks jurisdiction to grant longer-term relief. However, that represents a stopgap measure and not a permanent solution. There are no similar provisions for emergency orders if the jurisdictional barrier arises from UIFSA.


A lack of standing sometimes presents an obstacle to initiating or participating in a domestic relations proceeding. Typically, the concept of standing relates not to the court’s authority to act but to the entitlement of particular persons to initiate or participate in the proceeding. Commonly, both spouses have standing to initiate or participate in a proceeding to dissolve the marriage. Obstacles related to standing more commonly occur when there are questions as to whether grandparents, stepparents, or others may seek custody or visitation relating to minor children. Issues relating to standing also sometimes arise when a third party shares ownership of, or claims an interest in, an asset subject to division in the divorce.

Obstacles related to standing may occur when grandparents, stepparents, or others seek custody of minor children or visitation.

The question of whether or under what circumstances a grandparent, stepparent, or other third party might be entitled to seek custody or visitation with respect to a child will typically be defined by statute, case law, court rule, or some combination of the three, depending upon the specific state involved. Similarly, the question of whether a creditor, co-owner, or other third party must or may be joined in a dissolution proceeding relating to the allocation of assets and liabilities will be affected by the statutes, court rules, and case law of the subject jurisdiction.

There are too many state-to-state variations for a detailed discussion to be possible. However, third-party standing to seek custody, visitation, or similar access to a child has been affected by the Supreme Court’s 2000 decision in Troxel v. Granville, 530 U.S. 57. It will be important to make sure you rely on local statutes and decisions made in light of that pronouncement.

Third-party property or financial claims are also going to be subject to significant state-to-state variations. However, it is typically uncommon for every creditor of either of the spouses to be entitled to intervene in the divorce proceeding. Nevertheless, there are some kinds of business and financial enterprises for which a full resolution of the divorcing parties’ rights cannot be achieved unless the third party is joined.


The term “venue” relates to the county, district, or other judicial subdivision within the state in which a particular case must or should be brought. It is imperative to consult your local rules and statutes at the outset to determine the proper venue for a particular case. Often in domestic relations proceedings the determination will be based on the location were one or the other party resides or is served. However, state-to-state variations are too substantial for details to be provided here. Unlike subject matter jurisdiction, venue defects can commonly be waived by agreement or simply by lack of objection. It is not uncommon for parties and counsel to agree to file a case in a venue away from the parties’ residence or offices if one of the litigants is a lawyer, a judicial officer, or court employee or other circumstances exist that would result in the recusal of the local judge or otherwise make the litigation difficult professionally.

While it is certainly possible and sometimes worthwhile to object to improper venue, those battles should be chosen carefully.

While it is certainly possible and sometimes worthwhile to object to improper venue, those kinds of battles should be chosen carefully. The procedures involved in objecting to venue and obtaining a transfer of the case to the correct court generally entail both delay and additional attorney fees but do not move the matter closer to resolution. Thus, the cost of the fight over venue should be balanced against considerations of whether that effort results in any real added benefit to the client. fa

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Kathleen A. Hogan

Kathleen A. Hogan ([email protected]) is a principal with McGuane and Hogan, P.C., in Denver, Colorado, and editor in chief of Family Advocate.