Child Custody Jurisdiction

Question 1

UCCJE

Uniform Child Custody Jurisdiction Act

Answer 1

Covers “child custody determinations,” which includes proceedings involving custody and visitation. Types of proceedings included are:

• divorce,
• neglect and abuse,
• guardianship,
• paternity,
• termination of parental rights, and
• protection from domestic violence that includes a custody or visitation issue.
• It does not include juvenile delinquency.

Question 2

UCCJA

(excludes)

Answer 2

The UCCJEA specifically excludes coverage for adoption or proceedings subject to the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq.

Question 3

UCCJEA

Uniform Child Custody Jurisdiction Enforcement Act

Home State Definition

UCCJEA § 102

Answer 3

“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.”

Question 4

UCCJEA § 201

(Initial Jurisdiction)

Answer 4

For initial jurisdiction,

Home state - the home state has priority.

Significant Connection - If there is no home state, you can file in a state with significant connection jurisdiction.

Catch-all - If the home state and any states with significant connection jurisdiction have declined jurisdiction, you can use the catch-all of paragraph c and if there is no state with jurisdiction (highly unlikely) you can use the paragraph d catch-all.

Question 5

UCCJEA § 206

(No Home State)

Answer 5

If there is no home state, the first to file with jurisdiction consistent with the act has jurisdiction and the second state must decline jurisdiction.

Question 6

UCCJEA § 202

Modification Jurisdiction

Answer 6

The initial state has continuing exclusive jurisdiction if it meets the following criteria:

• it had initial jurisdiction consistent with the act
• a party is still in the initial state
• the initial state decides it has significant connection jurisdiction now

If all three of the above conditions are met, the initial state is the only state that can modify the initial order.

If any of these conditions are not met, any state that would have initial jurisdiction can exercise jurisdiction to modify the order.

Question 7

UCCJEA § 204

Emergency Orders

Answer 7

If there is no previous order entitled to enforcement and no action is pending in a court with jurisdiction:

• The emergency order remains in effect until a state with initial jurisdiction issues an order.
• If the emergency order says it may become permanent, and
  
  • another state with jurisdiction does not issue an order and
  • the state that issued the emergency order becomes the home state,
  • the emergency order becomes permanent

If there is an order entitled to enforcement or an action pending in a court with jurisdiction:

• the court issuing the emergency order must include the duration of the order and
• the order will expire by its terms or when the court with jurisdiction issues its order

The statute requires courts to communicate and cooperate to protect the child and obtain proper jurisdiction.

Question 8

UCCJEA § 208

Misconduct

Answer 8

If the court obtains jurisdiction because a person seeking jurisdiction engaged in unjustifiable conduct, the court must decline jurisdiction unless:

(1) the parents acquiesced in the exercise of jurisdiction;
(2) a court of the State otherwise having jurisdiction determines that the state with jurisdiction because of improper acts is a more appropriate forum or
(3) no court of any other State would have jurisdiction

Question 9

UCCJEA § 207

forum non conveniens

Answer 9

The court may refuse jurisdiction for forum non conveniens. The statute lists factors to be considered in this determination.

(1) whether domestic violence has occurred and is likely to continue in the future and which State could best protect the parties and the child;
(2) the length of time the child has resided outside this State;
(3) the distance between the court in this State and the court in the State that would assume jurisdiction;
(4) the relative financial circumstances of the parties;
(5) any agreement of the parties as to which State should assume jurisdiction;
(6) the nature and location of the evidence required to resolve the pending litigation, including the testimony of the child;
(7) the ability of the court of each State to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) the familiarity of the court of each State with the facts and issues in the pending litigation.

Question 10

PKPA (Parental Kidnapping Prevention Act)

28 U.S.C. § 1738A

Answer 10

Provides that an order is entitled to full faith and credit if it meets the following requirements:

(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:

(A) such State

(i) is the home State of the child on the date of the commencement of the proceeding, or
(ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;

(B) (i) it appears that no other State would have jurisdiction under subparagraph (A), and

(ii) it is in the best interest of the child that a court of such State assume jurisdiction because

(I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and

(II) there is available in such State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;

(C) the child is physically present in such State and

(i) the child has been abandoned, or
(ii) it is necessary in an emergency to protect the child because the child, a sibling, or parent of the child has been subjected to or threatened with mistreatment or abuse;

(D) (i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody or visitation of the child, and

(ii) it is in the best interest of the child that such court assume jurisdiction; or

(E) the court has continuing jurisdiction pursuant to subsection (d) of this section.

Question 11

PKPA

Requirements for Continuing Jurisdiction

Answer 11

1. proper jurisdiction for the initial order
2. a party remains in the initial state and
3. the initial state still has jurisdiction under “the law of such state

Question 12

UCCJEA

Requirements for Continuing Jurisdiction

Answer 12

1. proper jurisdiction for the initial order
2. a party remains in the initial state, and
3. the initial state decides it has significant connection jurisdiction at the time of the modification action