The Uniform Child Custody, Jurisdiction and Enforcement Act (UCCJEA)
The Uniform Child Custody and Enforcement Act (UCCJEA) is an issue that all parents of minor children will encounter when divorcing.
The Basics of the UCCJEA
The UCCJEA is a uniform act adopted by all the states (with the exception of Massachusetts), the District of Columbia, Guam, and the Virgin Islands. It also requires state courts to enforce child custody and visitation determinations made in a foreign country where the foreign court substantially conforms with the UCCJEA's jurisdictional standards. These standards primarily require fundamental procedural due process, which is mandated by the United States Constitution: procedural due process primarily requires notice and the opportunity to be heard (Read More About How to Get a Custody Order from A Foreign Country Recognized and Enforced).
The UCCJEA has two major purposes: 1) to provide a uniform standard among the states and foreign countries to prevent confusing, inconsistent orders, and inconvenient forums; and 2) to provide a remedial process to enforce interstate child custody and visitation determinations. In effect it prevents parents from "forum shopping" when dealing with child custody disputes.
The court must focus on the following two primary issues under the UCCJEA when presented with a child custody dispute: 1) does the state in which they are residing have initial jurisdiction; or, if not 2) whether the circumstances grant the current state jurisdiction to modify orders from another state.
Initial Jurisdiction under the UCCJEA
To establish initial jurisdiction so a court may make orders regarding child custody disputes, generally one of the following four conditions must be met: 1) a state must be a child’s “home state;" 2) the child and at least one parent must have “a significant connection” with the state (which applies only if there is no "home state;" 3) there is no other more appropriate forum (a state that is not the home state can be found to be more appropriate than the home state under certain circumstances); or 4) a jurisdictional "vacuum" must exist, with no other state would have jurisdiction to decide the case or a state that does have jurisdiction has expressly declined to exercise it.
The UCCJEA defines the home state as “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.” UCCJEA, §102(7). Home state jurisdiction also exists in a state that was the child’s home state within six months before the filing of the custody case, provided a parent continues to live in that previous home state. Often called the “extended home state rule,” this applies in domestic violence cases when a victim flees with the children to a new state, giving a court in the previous state jurisdiction to hear a custody case filed within six months of the child’s move.
In the case of a child who is less than six months of age at the time of filing, the statute defines the home state as “the state in which the child lived from birth.” Id. If the family has left and then returned to a state, the judge in this state may need to determine whether the time away was a “temporary absence” under the UCCJEA. If the time period is deemed to be a temporary absence, it is included in the calculation of the requisite six-month period for home state jurisdiction.
Modification Jurisdiction under the UCCJEA
The court that originally issues a custody order retains continuing exclusive jurisdiction over any modifications of that order. UCCJEA, §202. A court in a different state, however, may modify the order under any one of the following four circumstances:
1. Upon a finding by the initial or new court that all of the parties have left the issuing state;
2. Upon a finding by the initial court that the parties no longer have a significant connection with the state and that substantial evidence is no longer available there;
3. Upon a decision by the initial court to decline to exercise jurisdiction in favor of another state; or
4. Upon a finding by the new court that it has grounds to exercise temporary emergency jurisdiction.
Temporary Emergency Jurisdiction
Under the UCCJEA, a court may exercise temporary emergency jurisdiction when “the child has been abandoned or it is necessary in an emergency to protect the child because the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse.” UCCJEA, §204.
The provision clarifies that a court may exercise temporary emergency jurisdiction when a parent (or sibling) of a child has been abused or threatened with abuse, even if the child herself or himself has not been abused. Consequently, a court can exercise this form of jurisdiction when there is evidence that the parent has been abused by the other parent without requiring a finding that there is any child mistreatment or abuse. To exercise emergency jurisdiction, however, a court must find that the child is present in the state.
A court may exercise temporary emergency jurisdiction by entering a domestic violence protection order that includes a custody provision (or through another procedural vehicle).
The UCCJEA specifies that emergency jurisdiction is temporary; it is available to protect the parties until a court in the state with preferred jurisdiction is aware of the emergency and in a position to issue an order or to decline jurisdiction in favor of another state.
In limited circumstances, however, it can become permanent if the order so states, provided a child custody proceeding has not been commenced in another state with jurisdiction and the state becomes the child’s home state.
Reasons Courts with Initial or Modification Custody May Decline to Enter New or Modify Existing Order
A court having jurisdiction under one of the four jurisdictional bases described above may decline to exercise jurisdiction if the court finds that it is an inconvenient forum and a court in another state is a more appropriate forum. UCCJEA, §207.
By Reason of Conduct (“Unclean Hands”)
A court must decline to exercise jurisdiction if a party has engaged in unjustifiable misconduct that resulted in the court’s jurisdiction over the case. UCCJEA, §208.
This provision authorizes courts to decline to exercise jurisdiction when domestic violence perpetrators have abducted the children, creating custody jurisdiction in a new state. UCCJEA commentary specifies, however, that “domestic violence victims should not be charged with unjustifiable conduct for conduct that occurred in the process of fleeing domestic violence, even if their conduct is technically illegal.” UCCJEA Commentary, §208.
Enforcing the UCCJEA
The UCCJEA establishes enforcement provisions for child custody orders across state and international lines to help ensure the safety of the parties and child. Specifically, Article 3 of the UCCJEA establishes a duty to enforce out-of-state orders in substantial conformity with the statute, sets forth an optional process for registration of out-of-state orders to facilitate enforcement, provides for expedited enforcement of orders in emergencies, authorizes courts to enter warrants for law enforcement to take physical custody of children, and includes additional enforcement provisions.
Courts are required to treat foreign countries as if they were states and apply the UCCJEA unless the child custody law of the country “violates fundamental principles of human rights.” UCCJEA, §105.
Tribal Court Orders
If a state has enacted the optional UCCJEA provision regarding tribes (as most have), states must treat tribal court orders as if they were entered by another state. UCCJEA, §104. Because tribes are sovereign nations, however, each tribe has its own child custody jurisdiction law.
To read more about the UCCJEA from a judge's perspective see (https://www.ncjfcj.org/UCCJEA-Guide).
As one can readily see based on the above discussion, the UCCJEA can get tricky. If you have any questions or need help navigating an issue related to UCCJEA and child custody, Contact Griswold Law Firm, for your south bay divorce or child custody issue!
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