UCCJEA - 23 QUESTIONS

Question 1

What cases do UCCJEA jurisdictional rules apply to?

Answer 1

A wide range of cases including, divorce, separation, dependency, guardianship, paternity TPR, domestic violence when issues of custody and visitation arise in an initial or modification of custody proceedings.

Question 2

What types of cases does the UCCJEA NOT apply to?

Answer 2

UCCJEA does not apply to adoption cases.

Question 3

What other proceedings are also outside of the UCCJEA

Answer 3

UCCJEA is not applicable to Proceedings Authorizing Emergency Medical Care for a Child.

Question 4

Why are Proceedings pertaining to the authorization of emergency medical care for children are outside the scope of the UCCJEA?

Answer 4

They are not custody determinations. All States have procedures which allow the State to temporarily supersede parental authority for purposes of emergency medical procedures.

Question 5

What other types of cases do not fall within the UCCJEA?

Answer 5

Indian Tribes. A child-custody proceeding that pertains to an Indian child as defined in the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq., is not subject to the UCCJEA to the extent that it is governed by the Indian Child Welfare Act

Question 6

How does the UCCJEA treat International/Foreign Courts?

Answer 6

UCCJEA treats foreign courts as if they were sister state courts. However, state courts have the option of not applying the Act if the child custody of the foreign country violates fundamental principles of human rights.

Question 7

What is the most important change made by UCCJA to UCCJEA

Answer 7

The most important change made by UCCJA to UCCJEA in initial jurisdiction is the priority it gives to the home state jurisdiction

Question 8

What is the significant connection test under the UCCJEA?

Answer 8

This is similar to inconvenient forum and under UCCJEA, a court may exercise significant connection jurisdiction if the home state declines jurisdiction in its favor on an inconvenient forum or misconduct grounds, or if there is no home state, as well as substantial evidence in the state concerning the child. If there is no home state, and there are two states with significant connection jurisdiction, the conflict is resolved in favor of the first filed proceeding.

Question 9

Who can raise the issue of an inconvenient forum be raised?

Answer 9

The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion or request of another court.

Question 10

What factors shall the Court consider when determining inconvenient forum?

Answer 10

(1) whether there is DV and likely to occur in the future and which state could best protect the parties and the child;

(2) the length of time the child resided outside this state;

(3) the distance between the court in this state and the court in the stat 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;

(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.

Question 11

Is personal jurisdiction required for a custody determination?

Answer 11

Personal jurisdiction over a party or child is neither necessary nor sufficient to make a custody determination.

Question 12

Does a party submit themselves to personal jurisdiction by participating in a child-custody proceeding, including a modification proceeding, or a petitioner or respondent in a proceeding to enforce or register a child-custody determination?

Answer 12

NO - a party to a child-custody proceeding, including a modification proceeding, or a petitioner or respondent in a proceeding to enforce or register a child-custody determination, is not subject to personal jurisdiction in this State for another proceeding or purpose solely by reason of having participated, or of having been physically present for the purpose of participating, in the proceeding.

Question 13

For example, if both parties move from State A after the determination, with the custodial parent and the child establishing a new home State in State B, and the non-custodial parent moving to State C. Is the non custodial parent subject to the jurisdiction of State B?

Answer 13

The non-custodial parent is not, at this point, subject to the jurisdiction of State B for monetary matters

Question 14

What if the non custodial parent comes to State B to enforce visitation - do they subject themselves to the court’s jurisdiction?

Answer 14

NO - the non-custodial parent is not subject to the jurisdiction of State B for those proceedings and issues requiring personal jurisdiction by filing the enforcement action.

Question 15

Can the noncustodial party be served while in the state for an enforcement action?

Answer 15

No - a party also is immune from service of process during the time in the State for an enforcement action except for those claims for which jurisdiction could be based on contacts other than mere physical presence.

Thus, when the non-custodial parent comes into State B to enforce the visitation aspects of the decree, State B cannot acquire jurisdiction over the child support aspects of the decree by serving the non-custodial parent in the State.

Question 16

Is the physical presence of a party or a child is necessary or sufficient to make a child custody determination?

Answer 16

NO - the physical presence of a party or a child is not necessary or sufficient to make a child custody determination

Question 17

What does the UCCJEA eliminate from its standard?

Answer 17

Best Interest of Child test - to clearly distinguish between the jurisdictional standards and the substantive standards related to custody and visitation of children.

Question 18

The Court that made the custody determination has exclusive continuing jurisdiction until?

Answer 18

(1) neither the child, the child and a parent, nor the child and a person acting as a parent have a significant connection with the state AND substantial evidence concerning the child is no longer available in the state OR

(2) the child, parents and any person acting as a parent no longer live in the state.

Question 19

IF the state that made the original custody determination still has significant connection with the state but everyone left the state - which state has jurisdiction?

Answer 19

The state that entered the original decree is the only state that may determine whether it has significant connection jurisdiction (#1 above), but if everyone left the state (#2 above) then this determination may be made by a court in either state.

Question 20

If a proceeding was commenced in the decree state before the last person left the state, and they subsequently leave the state, does that original court still have exclusive continuing jur?

Answer 20

YES - leaving the state doesn’t defeat exclusive continuing jur BUT the Court with ECJ may decline jurisdiction in favor of child’s new home state on inconvenient forum grounds which may be appropriate under the circumstances.

Question 21

What must a court determine in an enforcement or modification proceeding?

Answer 21

A modification court is required to determine whether an enforcement proceeding has been commenced in another state.

The Court may, but is not mandated to, communicate with the enforcement court. The modification court may (1) stay the modification proceeding; (2) enjoin the parties from continuing with the enforcement proceeding; or (3) proceed with the modification.

Question 22

When is temporary emergency jurisdiction applied?

Answer 22

This applies when a child who is in the state and has been abandoned, or an emergency makes it necessary to protect the child because the child, or a sibling or parent of the child, is subjected to or threated with mistreatment or abuse

Question 23

Can a court exercise temporary emergency jurisdiction if a proceeding has commenced in another state?

Answer 23

YES - temp. emergency jur. applies even if a proceeding has been commenced in another state, but immediate judicial communications is mandatory when there are simultaneous proceedings.

Question 24

When is judicial communication between courts in a jurisdictional matter mandatory?

Answer 24

When temp emergency jur is exercised by another state when proceedings are already pending in a diff state

Question 25

What is the purpose of temp emergency jur?

Answer 25

The object is to resolve the emergency, protect the safety of the parties and the child, and determine the period of duration of the temporary order.

Question 26

What is still required even under temp emergency jur?

Answer 26

There must be due process (notice and opportunity to be heard) before a child custody determination is made

Question 27

In domestic violence proceedings where ex parte orders are entered and enforceable within the state if the domestic violence law authorizes them, are the the custody and visitation parts of the order entitled to interstate enforcement?

Answer 27

NO - in domestic violence proceedings where ex parte orders are entered, while they may be enforceable within the state if the domestic violence law authorizes them, the custody and visitation parts of the order are not entitled to interstate enforcement.

Question 28

What happens to a temp emergency jur order if there is no prior order enforceable under the UCCJEA and no proceeding has commenced?

Answer 28

The temporary emergency order becomes a final determination if it so provides when the state becomes the child’s home state (i.e. in 6 months), presuming notice has been given in accordance with the Act.

Question 29

When is a court required to decline to exercise emergency jur ?

Answer 29

A state court is required to decline to exercise emergency jurisdiction if it has jurisdiction because a person seeking to invoke it has engaged in unjustifiable conduct

Question 30

What are the three exceptions to that rule mandating the court to decline temp emergency jur due to unjustifiable conduct?

Answer 30

(1) the parents and all persons acting as a parents acquiesce in the exercise of jurisdiction;
(2) another court defers to this court on inconvenient forum grounds; and
(3) no other court would have jurisdiction

Question 31

What are the two grounds where a court that has initial jur, ECJ or mod jur may decline to exercise jur?

Answer 31

1) inconvenient forum; and

(2) jurisdiction declined by reason of conduct.

Question 32

If the court declines jur what must it require?

Answer 32

If the court decides to dismiss, it must stay the proceeding on the condition that a proceeding be commenced promptly in the more appropriate forum.

Question 33

Are parties permitted to be part of the communication between courts?

Answer 33

Under UCCJEA, courts may allow parties to participate in the judicial communication but it is not mandatory under the UCCJEA but if the parties are not able to participate, they must be given the opportunity to present facts and legal arguments before a jurisdiction decision is made.

Question 34

Are parties permitted to participate in communication between courts for UCCJEA in FL

Answer 34

This is a key difference in FL law - THIS IS DIFFERENT under FLORIDA’s UCCJEA – FL we must allow the parties to participate in communication. Courts must make a record of their communication and promptly inform the parties of the communication and grant them access to the record, except if the communication concerns scheduling, calendars, court records and similar matters. If it includes the latter, courts need not inform the parties nor make a record. A record may consist of a recording, a transcript, or even a memorandum made by a court after the communication.

Question 35

What is the purposes of registration of custody orders?

Answer 35

The purpose of the registration is to secure an order confirming another state’s custody order.

Question 36

What is the procedure to register a custody order

Answer 36

A request for registration is sent to the court either copies of the custody order.

The court then files the order as foreign judgment and serves notice on the other parent.

That parent then has 20 days from service to request a hearing to contest the registration. If not such request is made, the order is confirmed as a matter of law.

Question 37

What are three defenses available o contest registration of a custody order

Answer 37

(1) the issuing court’s lack of jurisdiction; (2) lack of notice and opportunity to be heard in the child custody proceeding that resulted in the order; and (3) the child custody determination has been vacated, stayed or modified.

Question 38

When does a defense have to be raised?

Answer 38

At time of registry - confirmation of a registered order precludes further contest on any matter that could have been asserted at the time of the registration

Question 39

What is the only exception?

Answer 39

The only available defense at a subsequent enforcement hearing is the custody determination has been vacated, stayed, or modified subsequent to being confirmed. Also, a registered order will not be enforced if it is vacated, stayed or modified after it is registered.

Question 40

How soon must a hearing occur in an enforcement to recover child action?

Answer 40

Procedures provide for an enforcement hearing within 24 hours of service which will result in an order authorizing petitioner to take immediate physical custody of the child unless respondent establishes one of the few defenses specified in the statute. If the order has not been previously registered

Question 41

What if the order was already registered ? What defenses are available?

Answer 41

If the order was registered, only the 3rd defense is available (i.e. the child custody determination has been vacated, stayed or modified).

Question 42

What is the only break?

Answer 42

Is for the enforcing court to communicate with modification court. Although not stated in the statute, the comments provide the modification court is to decide whether the enforcing court will proceed, stay or dismiss the proceeding

Question 43

Does the UCCJEA authorize a court to issue a warrant?

Answer 43

YES

Question 44

What are the circumstances that permit a warrant under the UCCJEA

Answer 44

The UCCJEA authorizes a court to issue a warrant to take physical custody of a child upon finding that “the child is imminently likely to suffer serious physical harm or be removed from the state.”

Question 45

What must petitioner do to apply to the court for a warrant?

Answer 45

1. The petitioner must file a verified application requesting the warrant, and the court must take testimony from the petitioner or other witness (i.e. in person, phone).
2. Upon making the required finding, the court may issue a warrant directing law enforcement to pick up the child (i.e. pick up order) and provide for the child’s placement pending the enforcement hearing.
3. The enforcement petition must be hear on the next judicial day after the warrant is executed (the child is picked up).

*This is useful in international child abductions.

Question 46

What is the purpose of public enforcement sections of the UCCJEA?

Answer 46

The UCCJEA includes sections for the purpose of creating an interstate network of prosecutors who, with civil and criminal legal tools at their disposal, will be available to help locate and return children to the jurisdiction of the court that is empowered to resolve the custody issues. The authority granted in this section is discretionary and prosecutors are not required to intervene.

Question 47

When does FL have UCCJEA in an initial child custody jurisdiction matter?

Answer 47

A court of this state has jurisdiction to make an initial child custody determination only if:

(a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

(b) A court of another state does not have jurisdiction under paragraph (a), or a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum under s. 61.520 or s. 61.521, and:
1. The child and the child’s parents, or
the child and at least one parent or a
person acting as a parent, have a
significant connection with this state
other than mere physical presence; and
2. Substantial evidence is available in this
state concerning the child’s care,
protection, training, and personal
relationships;

(c) All courts having jurisdiction under paragraph (a) or paragraph (b) have declined to exercise jurisdiction on the grounds that a court of this state is the more appropriate forum to determine the custody of the child under s. 61.520 or s. 61.521; or

(d) No court of any other state would have jurisdiction under the criteria specified in paragraph (a), paragraph (b), or paragraph (c).

(3) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

Question 48

Is physical presence of, or personal jurisdiction over, a party or a child is necessary of child custody determination in FL?

Answer 48

NO

Question 49

When does a court have exclusive continuing jurisdiction under FL law?

Answer 49

61.515:
1. A court of this state which has made a child custody determination consistent with s. 61.514 or s. 61.516 has exclusive, continuing jurisdiction over the determination until:

(a) A court of this state determines that the child, the child’s parents, and any person acting as a parent do not have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or

(b) A court of this state or a court of another state determines that the child, the child’s parent, and any person acting as a parent do not presently reside in this state.

(2) A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under s. 61.514.

Question 50

How does FL UCCJEA determine it has jurisdiction to modify a custody determination?

Answer 50

61.516:
(1) a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under s. 61.514(1)(a) or (b) and:

(2) The court of the other state determines it no longer has exclusive, continuing jurisdiction under s. 61.515 or that a court of this state would be a more convenient forum under s. 61.520; or

Question 51

What were the major revisions made by way of the UCCJEA to the UCCJA?

Answer 51

1. Clear standards for which States can exercise original jurisdiction over child custody determinations
2. For the first time it enunciates a standard of continuing jurisdiction and clarifies modification jurisdiction
3. Provides a remedial process to enforce interstate child custody and visitation determinations.

Question 52

What was a big issue with home state priority under the UCCJA that has been cleaned up by way of the UCCJEA?

Answer 52

There was a conflict in what home state was under the PKPA (Parental Kidnapping Preventing Act) and the UCCJA. Now the UCCJEA prioritizes home state jurisdiction

Question 53

What is is the “purpose” of the UCCJEA Act?

Answer 53

1. Avoid jurisdiction battles
2. Promote cooperation between courts
3. Discourage interstate controversies over child custody
4. Deter child abductions
5. Avoid relitigating custody decisions of other States in this State
6. Facilitate enforce other custody decrees of other states

Question 54

What is the definition of “abandoned” under the UCCJEA?

Answer 54

Means left without provision for reasonable and necessary care or supervision

Question 55

what is the definition of “child”

Answer 55

An individual who has not attained 18 years of age

Question 56

What is the definition of “child custody determination”

Answer 56

It means a judgment, decree, or other order
of a court providing for the legal custody, physical custody, or visitation with respect to a child.

The term includes a permanent, temporary, initial, and
modification order.

The term does not include an order relating to child support or other monetary obligation of an individual

Question 57

What is the definition of “child custody proceeding”

Answer 57

It means a proceeding in which legal custody,
physical custody, or visitation with respect to a child is an issue.

The term includes 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

Question 58

What is the definition of “home state”

Answer 58

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

Question 59

What is the definition of initial determination?

Answer 59

It means the first child-custody determination
concerning a particular child.

Question 60

What is the definition of “issuing court”

Answer 60

It means the court that makes a child-custody
determination for which enforcement is sought under this act

Question 61

What is the definition of “issuing state”

Answer 61

It means the State in which a child-custody determination is made.

Question 62

Who is a “person acting as a parent” under the UCCJEA?

Answer 62

It means a person, other than a parent, who:
(A) has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year
immediately before the commencement of a child-custody proceeding; and

(B) has been awarded legal custody by a court or claims a right to legal custody under the law of this State.

Question 63

What is the definition of “State” under the UCCJEA?

Answer 63

It means a State of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States

Question 64

What type of case does the UCCJEA not govern?

Answer 64

It does NOT govern an adoption proceeding or a proceeding pertaining to the authorization of emergency medical care for a child or a child custody case pertaining to an Indian child defined by the Indian Child Welfare Act

Question 65

When does a child custody determination made by a tribe have to be enforced?

Answer 65

A child-custody determination made by a tribe under factual circumstances in substantial conformity with the jurisdictional standards of the UCCJEA MUST must be recognized and enforced under the UCCJEA (Article 3)

Question 66

Under the UCCJEA, how is a foreign state treated?

Answer 66

A court of this State shall treat a foreign country as if it were a State of the United States for the purpose of applying [Articles] 1 and 2 of the UCCJEA.

Question 67

When must a foreign child custody determination be enforced by this State under the UCCJEA?

Answer 67

A child-custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this [Act] must be recognized and enforced under [Article] 3 UNLESS the child custody law of a foreign country violates fundamental principles of human rights

Question 68

What must happen if there is a question of existence or exercise of jurisdiction under the UCCJEA is raised in a child-custody proceeding?

Answer 68

The question, upon request of a party, must be given priority on the calendar and handled expeditiously.

Question 69

What is the “significant connections test” similar to?

Answer 69

Similar to inconvenient forum

Question 70

What is the significant connection test under the UCCJEA?

Answer 70

A court may exercise significant connection jurisdiction if the home state declines jurisdiction on grounds:
1. it is an inconvenient forum
2. misconduct grounds or
3. there is no home state as well as substantial evidence in the state concerning the child

Question 71

What happens if there is no home state but there are two states with significant connection jurisdiction?

Answer 71

The conflict is resolved in favor of whoever filed FIRST

Question 72

How can the issue of inconvenient forum be raised?

Answer 72

1. upon motion by a party
2. court’s own initiated
3. request by another court

Question 73

Is personal jurisdiction necessary for an initial child custody proceeding or a modification of child custody proceeding?

Answer 73

NO

Question 74

When does the court that made the custody determination have exclusive continuing jurisdiction until?

Answer 74

1. Neither the kid, the kid and parent, nor kid and person acting as a parent have a SIGNIFICANT CONNECTION with the state AND substantial evidence concerning the kid is no longer available in the state OR
2. the child, parents or person acting as a parent no longer live in the state

Question 75

Who gets to decide if the original court with exclusive continuing jurisdiction still has significant connection jurisdiction?

Answer 75

The original state that entered the order UNLESS everyone left the state in which case the court in either state can determine

Question 76

What happens if a proceeding was commenced in the decree state BEFORE the last remaining person left?

Answer 76

The last person leaving does not defeat exclusive continuing jurisdiction BUT the ECJ can decline to exercise jur in favor a child’s new home state based on inconvenient forum grounds

Question 77

What must a modification of custody court do first?

Answer 77

Determine whether an enforcement proceeding has been commended in another state

Question 78

Is the modification court required to communicate with an enforcement court?

Answer 78

It MAY but it is not mandatory to communicate with the enforcement court

Question 79

If there is another enforcement proceeding, what can the modification court do

Answer 79

1. Stay the modification proceeding
2. Enjoin the parties from continuing with the enforcement proceeding
3. Proceed with the modification