Power of a Court (Jusisdictional and Conflict of Laws Issues) Flashcards
2) Which court may issue a property division order?
a) Unless the court has jurisdiction over the defendant spouse (e.g., by minimum contacts or serving the defendant in the state), it may not issue a binding order affecting personal rights, such as property division or spousal support. The divorce decree is thus “divisible.” (Note: If the defendant-spouse agrees to participate in the divorce proceeding, he or she is bound by the forum state’s determination on the issue of property division because they impliedly waive the jurisdictional issue.)
i) This type of a divorce is an ex parte divorce, meaning that when the court issues a
divorce decree based on the plaintiff’s domicile without jurisdiction over the defendant,
the court cannot adjudicate property and spousal support rights.
b) A court with personal jurisdiction over the parties would have jurisdiction over property matters.
c) A court may determine ownership of property located in the state.
1) Which court may dissolve a marriage?
a) The court does not need jurisdiction over both spouses to terminate a marriage. If the plaintiff spouse is domiciled in a state (“is a domiciliary of the forum state”) or if the state has some other equivalent long-term connection between at least one of the parties to the marriage, then that court has jurisdiction to dissolve the plaintiff’s marriage.
i) Ex.: Husband moved from State X to State Z after accepting a job in State Z. State Z was Husband’s bona fide domicile. Wife had never been to State Z. State Z can grant Husband a divorce. (However, a different state may determine property division because property division claims require in personam jurisdiction where one needs minimum contacts—which Wife would not have here.)
3) Which court determines child custody and support?
a) Jurisdiction over parent in a child support and custody case:
a) Jurisdiction over parent in a child support and custody case:
i) A court must have personal jurisdiction over a non-resident parent in a child custody or support case. Often times for purposes of the bar the UCCJEA and UIFSA provides the basis for personal jurisdiction (rules are outlined below).
(1) Ex.: A state may have jurisdiction over a father who had sexual relations with a woman in the state fourteen years prior to when the child support and custody action was filed. This was a purposeful act and likely suffices as a minimum contact.
3) Which court determines child custody and support?
b) Child support
b) Child support
i) The Uniform Interstate Family Support Act (UIFSA) governs child support. This has been adopted by all states.
(1) Enforceability of child support order
(a) A registered child support order issued in another state is “enforceable in the same manner and subject to the same procedures as an order issued by a tribunal of this State.” Thus, once an order is registered, it may be enforced by any state.
(b) Even if the issuing state does not have jurisdiction over the party that is ordered
to pay child support (e.g., because the party does not live in the state, is not served in the state, and does not have minimum contacts in the state), there is a two-step procedure that avoids the need to obtain jurisdiction. First, the party seeking child support (e.g., the mother) will file an enforcement petition in the state where she
resides. An order to pay child support will then be forwarded to the relevant court in the state where the other parent (e.g., the father) resides.
(i) Ex.: Mother lives in State A. Father lives in State B and does not have minimum contacts with State A. Father stops paying child support. Mother seeks to enforce the child support order. The proper procedure for the mother to follow is to file an enforcement petition in State A. State A will forward the child support order the relevant court in State B so that State B may enforce it against the father.
(c) The Full Faith and Credit for Child Support Orders Act says that a state may not modify the child support order of another state that has continuing, exclusive jurisdiction unless no parent or child resides in the states or unless each parent has agreed in writing to allow another state to assert jurisdiction. The Full Faith and Credit for Child Support Orders Act requires states to give full faith and credit to child support awards from other states.
(d) Section IV-D of the Social Security Act requires states, as a condition of their
participation in federally funded child support programs, to have procedures that require full faith and credit to child support orders from other states. All states have chosen to have these procedures.
(2) Subject-matter jurisdiction and modification of a child support order
(a) A state that originally issued a child support order has continuing, exclusive
jurisdiction to modify that order if the state remains the residence of the obligee, the child, or the obligor, and at least one of the parties does not consent
to the jurisdiction of another forum.
(i) Ex.: If a wife and daughter continue to live in State B and the wife has not consented to the jurisdiction of another forum, then a State A court would not have jurisdiction to modify the State B child support order.
(b) Like the UCCJEA the PKPA (discussed below) the UIFSA utilizes a “home state” rule
for establishing subject-matter jurisdiction. However, unlike the UCCJEA and PKPA, UIFSA home-state rule establishes priority among competing child support orders. A state court may exercise subject-matter jurisdiction to establish a child support order if a pleading has been filed in another state court only if the second state court is in the home state of the child or if jurisdiction in the other state has been timely challenged. As long as the personal jurisdiction requirements are met, the UIFSA does not prevent a state court from issuing a child support order when another state is the child’s home state if a pleading for child support has not been filed in the home state court.
(i) Ex.: Because no competing child support pleading had been filed in the child’s home state, the UIFSA did not preclude a non-home state court from entering a child support order.
3) Which court determines child custody and support?
c) Child custody order
i) Initial and modification of a child custody order
(1) The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA): This has been adopted in virtually all states as of 2017 except Massachusetts (and contains child-custody modification standards virtually identical to the federal Parental Kidnapping Prevention Act, discussed below). A state has jurisdiction to issue a custody order using the tests below. Further, this applies to modification of custody so that a state that properly issued a custody decree retains continuing, exclusive jurisdiction until all parties and the child have left the state, or an issuing state court has determined that there is no longer any significant connection between the child and the person remaining in the state and that substantial evidence is no longer available in that state. This can be divided into a few tests:
(a) The home state test: Basically, the “home state” has exclusive jurisdiction to modify a custody decree. A “home state” is a state where the child has lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of the child-custody proceeding. A home state continues to have exclusive jurisdiction to issue a custody order even if the child is absent from the state when the petition is brought, so long as no more than six months have elapsed since the child’s departure and a parent, or person acting as a parent, still lives in the home state. (The physical presence of the child is not necessary to make a child-custody determination.)
(i) Ex.: Meg, the mother, took child from the family home in State A five months ago. Dad still lives in State A. State A has exclusive jurisdiction. (July 2011)
(ii) Ex.: Dad and Mom lived in State A before they separated. When Dad and Mom separated two months prior, Dad remained in State A and Mom moved to State B. Their son had frequent contact with Dad in State A as well as other significant connections. A State B court may not modify the custody decree because a court in State A would not decline to exercise jurisdiction.
(b) The “significant connections” test: If a child has no “home state,” a state may exercise jurisdiction based on (1) “significant connections” with the child and at
least one parent, and (2) the existence of “substantial evidence” relating to child
custody in the forum jurisdiction.
(i) Ex.: Mom moved from State A to State B four months ago. No parent lived in State A. State A was the home state before the custody petition was filed and State A was where mom was married, gave birth to daughter, and lived. It is also where the daughter currently lives. Since there is no “home state” (a parent does not live in State A, and no new home state as established), State A would have jurisdiction under this test.
(c) Emergency jurisdiction: the child is physically present in the state and has been abandoned or subject to abuse.
(d) Default jurisdiction: no other state has jurisdiction or the state with jurisdiction
declined to exercise it and it is in the best interest of the child for the court to assert jurisdiction.
(2) The federal Parental Kidnapping Prevention Act (PKPA)
(a) This is very similar to the UCCJEA and the result is usually the same. It is frequently mentioned on essays that mention the UCCJEA.
(b) It says a state may not modify a custody order issued by another state if either the child or any contestant continues to reside in the issuing state and the issuing state’s courts do not decline to exercise jurisdiction. The PKPA “similarly grants exclusive jurisdiction over a child-custody petition to a child’s ‘home state.”’ (see under UCCJA above). Under the PKPA, a court must give full faith and credit to the custody decrees from a sister state but only if the sister state had jurisdiction. “Under the supremacy clause, PKPA takes precedence over any conflicting state law.”
4) Which court determines adoption rights?
a) Which state law applies to statute of limitations?
i) Most states treat statues as procedural and apply their own statute of limitations.
ii) The Uniform Conflict of Laws Limitations Act treats it as substantive when a claim is
“substantively based” on the law of a particular state and applies that statute of limitations.
b) Does a state have jurisdiction to enter an adoption decree?
i) Under traditional principles, a state that is the domicile of the adoptive parents can enter an adoption decree.
ii) Under current principles, the essential inquiry is whether the state has a sufficiently
strong connection with the child and whether substantial evidence concerning the case
is present there.
iii) The UCCJEA test is whether the child and at least one contestant have a significant
connection with the state.
5) Which state’s law governs enforceability of premarital agreements?
a) Some states apply the law of the state where the contract was executed.
b) Other states apply the law of the state with the most significant relationship to the parties and the transaction.
