Applying the UCCJEA in Family Law

The Act is available online at https://www.uniformlaws.org. This link is very helpful because the Uniform Law Commission (ULC) provides commentary for each provision of the Act.

Both the state and federal acts have one main goal: to ensure that there is only one controlling child custody order and that the resulting order is given full faith and credit.

Login to download a PDF of flowcharts from this article on Establishment or Modification of a Child Custody Order Under UCCJEA and Child Custody Triage (pp. 17, 19).

What Do You and Your Paralegal Need to Know Best

Let’s assume you just hired a new paralegal, with one of their jobs being to screen new clients as they call in. Let’s further assume that you hired your adult child. They want to look good, but they are also intolerant of your explanations. What do you want to pound into their heads?

If they don’t walk away with these questions, and responses, hardwired, make Jr. pay for lunch—and order a top-shelf martini before you close out the tab.

Then take the flow charts from this article and place them near their phone alongside the UIFSA flow charts from the Spring 2017 issue of Family Advocate. Uniform Laws for Family Law, 39 Fam. Adv., no. 4, Spring 2017, at 12, 14.

Complexity

Family law jurisdiction appears complex. It seems that way because different aspects of a family law case find jurisdictional support in different places. Here, we are discussing child-custody jurisdiction; there, we discuss family support jurisdiction. In each, specific jurisdictional rules result in different jurisdictional criteria. Traditional notions of jurisdiction simply don’t apply. One would expect that if you have jurisdiction over the parents, then you have control over all aspects of the case. Not so! When jurisdiction is wrongly applied, cases became chaotic, with parties (not only a mom and a dad) getting contradictory orders from one state or another.

On a personal level, if you try to apply the wrong jurisdictional decision and lead the case in the wrong way, you might be accused of malpractice.

Family law has those two unique jurisdictional subtopics: child custody and child support. There are other jurisdictional considerations, such as the status of marriage, property division, and choice of law relating to any contracts the parties are engaged in—we’re all familiar with the common law. But these two—child support and child custody—don’t follow common law standards.

The UCCJEA’s Applicability

The UCCJEA applies to all “child-custody proceedings.” Such proceedings are defined under the Act as:

. . . 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.

UCCJEA § 101(4). Individual states may add additional proceedings; for example, many states have extended the use of the UCCJEA to adoptions.

If the proceeding is a child-custody proceeding, the initial pleadings must include what is commonly called a UCCJEA affidavit, the elements of which are set out in section 209. This statute sets out the required information to be supplied to the court.

Removing States’ Common Law Jurisdiction

The real key to understanding how the UCCJEA works comes with the realization that the Act holds child-custody jurisdiction to the state that has the closest connection to the children and the family. Once a state has seized jurisdiction, that jurisdiction may continue even after the subject child has left the state for years.

Child-custody jurisdiction is subject matter jurisdiction. As such, it cannot be waived by the parties, and jurisdictional challenges may be brought at any time, including on appeal, and by any court sua sponte. The only time an agreement between the parties is persuasive would be a factor in determining the convenience of a forum or retaining jurisdiction in the face of unjustifiable conduct.

Jurisdiction to make nonemergency child-custody orders is established through three main concepts:

1. “Home State.” Id. § 101(7). This iconic status is defined by the Act as:

“Home State” means the State in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. In the case of a child less than six months of age, the term means the State in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

Aside from meeting this standard, home state may be established when a court that otherwise would not have jurisdiction under section 201 takes temporary emergency jurisdiction and issues orders; if no action has been commenced under sections 201–203, then the issuing state hearing the emergency is deemed the child’s home state.

2. Exclusive, Continuing Jurisdiction. Id. § 202. Understanding the uniformity of the Act, this statute provides that the state that issued a child-custody order, not a temporary emergency order under section 204, will have modification jurisdiction until the child and anyone acting as a parent have left the state. This determination is up to the issuing state or a sister-state where a petition is filed on the basis that jurisdiction is now vested in this new state. Notice that the idea of “parent” includes those acting as a parent who are not legal parents, such as a guardian.

3. Initial Child-Custody Jurisdiction. Id. § 201. This statute is a gatekeeper provision, meaning that anytime there is a proposed change in jurisdiction, section 201 is the rule applicable in establishing a new jurisdiction. This statute first looks for a home state; failing to find any state fitting that definition or a sister-state having declined jurisdiction, then a two-prong test is applied: (a) does the child and their parents, or at least one parent (including acting as a parent), have a significant connection with this state and (b) is substantial evidence for the child’s care, protection, training, and personal relationships to be found in this state?

Emergency Jurisdiction

Threaded throughout the Act as an exception to many of its mandates is the idea of emergency jurisdiction. Id. § 204. This statute is limited in scope and duration and presumes that jurisdiction cannot be established by this court under sections 201–203. Jurisdiction for a court to act is predicated on (1) the child being in the state and (2) there being a showing of abandonment or an emergent need to protect the child—or the child’s sibling or parent—from threatened or actual mistreatment or abuse.

The statute breaks out into two circumstances. First, if no proceeding has commenced under sections 201–203 in any other state, the court may proceed to issue orders. If at that time there still is no proceeding commenced in any state that would have jurisdiction under sections 201–203, then the state from which the court invoked emergency jurisdiction will be deemed the child’s home state.

The second instance is where there is another court that has seized jurisdiction under sections 201–203 and has issued an order. Then the court with emergency jurisdiction can only make a temporary order. That temporary order must specify a period reasonably calculated to allow a movant to then seek further orders from the court that has jurisdiction. To assure that this temporary order does not violate the full faith and credit mandate, the court with temporary emergency jurisdiction shall immediately communicate with the court having jurisdiction under sections 201–203.

Courts care for children as parens patriae, to cover the gaps where parents cannot or will not care for the child. So, an apt analogy would be this: If one were to see a child take a fall, they would render aid to the child but immediately find the parents. They don’t just keep the child.

Two Provisions Whereby a State May Decline Jurisdiction

The UCCJEA establishes jurisdiction first by home state; that, in turn, focuses on where the child resides, then where significant connections and substantial evidence would rest. Further, because of exclusive, continuing jurisdiction (section 202), a state that has issued orders may continue to hold modification jurisdiction of those orders. It is important to note that these statutes only apply to a court that is considering declining jurisdiction. It is error to challenge another state’s jurisdiction in your state with these two statutory provisions.

Two provisions fine-tune this jurisdictional scheme.

1. Inconvenient Forum. UCCJEA § 207. A court that is vested with jurisdiction may still decline jurisdiction under this provision. The statute sets out specific factors for the court to consider, but the court shall consider all factors. Those specific factors are summarized as follows: (a) if domestic violence has occurred, the state that best protects the victim and the child; (b) the length of time the child has been away from the state; (c) the distance between the two states; (d) the relative financial circumstances of the parties; (e) any agreement between the parties relating to jurisdiction; (f) the nature and location of evidence; (g) the respective availability of the courts to manage the case expeditiously; and (h) the familiarity of the court of each state with the case.
2. Jurisdiction Declined by Reason of Conduct. Id. § 208. Here the focus is on the person who is seeking to invoke the jurisdiction of a court. This provision allows the court to decline to take jurisdiction if that person engaged in unjustifiable conduct. Unjustifiable conduct is undefined by the statute; therefore, the court has broad discretion. The statute does provide a list of exceptions, summarized as (a) the parties acquiesced to the jurisdiction; (b) the other court, which may have jurisdiction under the Act, has been found to be an inconvenient forum; and (c) there is no other court that could take jurisdiction under sections 201–203.

Handling Multiple Jurisdictions

As can be seen from when states may decline jurisdiction, there are cases where more than one jurisdiction is potentially applicable. Many instances don’t involve claims of unjustifiable conduct or the convenience of the forum. Competing arguments for jurisdiction commonly arise when no previous action has been filed and the parents live in different states—something common in border communities. This scenario brings to light three statutes:

1. Simultaneous Proceedings. Id. § 206. Here, when a court is aware that a sister-state is also conducting litigation, the statute requires the court to review the record in the sister-state. If no emergency exists, then the court should not proceed in deference to the court that has competent jurisdiction.
2. Communication Between Courts. Id. § 110. Many times, more needs to be known about competing courts to determine the proper forum. This may be anything from the respective procedural posture, to taking testimony and hearing evidence over competing claims. This provision allows the courts to communicate. These communications are on the record, and the parties might be allowed to participate. Then sections 111 and 112 deal with the ability to take out-of-state testimony and the authority to preserve records.
3. Taking Testimony in Another State. Id. § 111. This provision allows parties, children, and witnesses to testify, as well as abrogating the best evidence rule, which allows copies of documents to be admitted into evidence.

Enforcement, Article 3

Article 3 puts the “E” in the UCCJEA, clearly intending to manage interjurisdictional conflicts over child custody. The state has imposed upon it a duty to enforce orders arising from other states as the PKPA requires. Id. § 303.

The Article also permits, but does not require, a court to use the Act in Hague Convention enforcement. Id. § 302. That means a party may petition directly under the Convention. The Act provides standing for prosecutors and public officials to institute an action under the Hague Convention. Id. § 315. Further, it empowers local law enforcement to assist the prosecutor or public official to locate children or parties. Id. § 316.

In managing interstate child-custody disputes, the court can either enforce an existing visitation schedule or make temporary orders as the proceedings carry forward. Id. § 304.

Proceedings for Enforcement

To enforce a child-custody determination issued by another state, the order must be registered under section 305. This is a specific statutory provision that differs slightly from a general registration of judgments under the code of civil procedure. The party registering the orders provides in writing two copies (one certified), an averment that the orders sought to be registered have not been modified, and contact information about the party seeking registration (unless, for safety reasons, the information should not be disclosed).

When the court receives these documents, it files the documents as a foreign judgment. Then, the court is required to provide notice to the other parties.

Practice tip: Most courts put the onus on the registering party to draft and serve their notices.

Those who receive a notice have 20 days to challenge the registration. Failure to make a timely challenge constitutes a waiver.

The challenges to registration are few: (1) The court that issued the order being registered did not have jurisdiction; (2) the order has been vacated, stayed, or modified; or (3) the party challenging registration was not served with proper notice.

Once an order is registered, the court will then have jurisdiction to enforce the order and need not have jurisdiction to modify it. In other words, multiple courts may enforce the same order. Id. § 306.

As stated above, as they proceed with multijurisdictional enforcement, the courts are required to communicate with one another under section 110.

Upon proper notice, the court then will proceed to a hearing and may issue orders. Id. § 310. The court may issue orders allowing the petitioner to take custody of the child. (Note: Section 310 presumes that if a party refused to answer on the grounds of self-incrimination, the court may make negative inferences; further, in these hearings, the privilege of spousal communication is abrogated.)

The court is also empowered under section 311 to issue warrants for the custody of a child upon a finding that the child is imminently likely to suffer serious physical harm or be removed from the state. These are expedited proceedings. Id. § 308. The orders stemming from these proceedings are subject to full faith and credit. Id. § 313. While the orders are subject to appeal, as the appeal proceeds, the orders under appeal are not stayed. Id. § 314. Unique to Article 3, enforcement, if the petitioner prevails, the respondent may be ordered to pay all direct expenses and costs incurred by those public officials and law enforcement entities. Id. § 317.

There is also a more general fee provision. Id. § 312. This provision requires the court enforcing the custody order to award to the prevailing parties reasonable expenses incurred by, or on behalf of, the prevailing parties. Expenses include communication expenses, attorney fees, investigative fees, witness fees, travel, and childcare during the course of the proceedings. This provision places the burden on the nonprevailing party to establish that such an award would be “clearly inappropriate.”

Common Wrong Answers

Like a blooper’s reel at the end of the show, here are common misconceptions of the UCCJEA—things that are often said, and usually wrong.

1. “A court may take jurisdiction over any child who has lived in the state for more than six months.” This is wrong because, as discussed, the court that issued the prevailing order retains exclusive, continuing jurisdiction as long as a parent, or a person acting as a parent, resides in the issuing state.
2. “A court can determine that the sister-state is an inconvenient forum or vested with jurisdiction only due to unjustifiable conduct.” This is wrong because only the court vested with jurisdiction may release its jurisdiction under these provisions—it can’t be taken from a court.
3. “If, in the six months preceding the petition, there was no child, parent, or person acting as a parent in the state, the home state was lost.” This is wrong because a home state under section 101(7) allows for temporary absences, and in instances where the child is less than six months old, the Act provides that the six-month rule is modified to mean where the child has lived since birth.
4. “If the child-custody order was only temporary, that court does not have exclusive jurisdiction.” This is wrong because section 102(3) defines a child-custody determination and includes temporary orders.

Conclusion

The UCCJEA provides a common structure to assure that there will not be multiple custodial orders and that those orders made receive full faith and credit. It is incumbent upon practitioners, and for those upon whom they rely to interview new clients, to have at least a basic understanding of the Act. Because subject matter jurisdiction may be challenged at any time, there are many cases that have run for years before their faulty jurisdictional foundation was discovered. There are so many concerns when these cases happen, not the least of which would be the potential damage to the child and their family.