The Uniform Child-Custody Jurisdiction and Enforcement …

1 Department of JusticeOffice of Justice ProgramsOffice of Juvenile Justice and Delinquency Prevention December 2001A Message From OJJDPA merica is a society with a substan-tial divorce rate. Each year, morethan 1,000,000 children in the UnitedStates are affected by the divorce oftheir parents, and of all children whoare born to married parents this year,half are likely to experience a divorcein their families before they reachtheir 18th is also a highly mobile socie-ty. On the dissolution of family ties, itis not uncommon that a parent, per-haps even both parents, may moveout of the State in which the familyresided at the time of their separa-tion. Thus, it is not surprising thatcourts in different States are becom-ing involved in Child-Custody and visi-tation disputes concerning the Uniform Child-Custody Jurisdic-tion and Enforcement Act, which isdescribed in this Bulletin, has beenproposed by the National Conferenceof Commissioners on Uniform StateLaws.

2 The proposed Uniform Statelaw is designed to deter interstateparental kidnapping and to promoteuniform Jurisdiction and enforcementprovisions in interstate child -custodyand visitation cases. The Act hasbeen enacted by 25 States and theDistrict of Columbia and introducedinto legislatures in several is our hope that the informationprovided in this Bulletin will assistthose considering the adoption ofthis model law in their Act requires State courts to enforcevalid Child-Custody and visitation determi-nations made by sister State courts. It alsoestablishes innovative interstate enforce-ment UCCJEA is intended as an improve-ment over the UCCJA. It clarifies UCCJA provisions that have received conflictinginterpretations in courts across the coun-try, codifies practices that have effective-ly reduced interstate conflict, conformsjurisdictional standards to those of theFederal Parental Kidnapping PreventionAct (the PKPA)6to ensure interstate en-forceability of orders, and adds protec-tions for victims of domestic violence whomove out of State for safe UCCJEA, however, is not a substan-tive custody statute.

3 It does not dictatestandards for making or modifying Child-Custody and visitation decisions; instead,it determines which States courts haveand should exercise Jurisdiction to do court must have Jurisdiction ( , thepower and authority to hear and decide amatter) before it can proceed to considerthe merits of a case. The UCCJEA does notapply to child support BackgroundIn a mobile society with a high rate ofdivorce, courts in different States (andcountries) often become involved inThe Uniform child -CustodyJurisdiction andEnforcement ActPatricia M. HoffThis Bulletin describes the Uniform Child-Custody Jurisdiction and Enforcement Act(the UCCJEA),1the most recent in a seriesof laws designed to deter interstate pa-rental kidnapping and promote uniformjurisdiction and Enforcement provisionsin interstate Child-Custody and visitationcases. The Office of Juvenile Justice andDelinquency Prevention (OJJDP) is pub-lishing this Bulletin to provide current in-formation about the UCCJEA to legislatorsin States considering its adoption and toparents and practitioners in States thathave already adopted the law.

4 The Bulle-tin is not an official OJJDP endorsementof the UCCJEA is a Uniform State law thatwas approved in 1997 by the NationalConference of Commissioners on UniformState Laws (NCCUSL) to replace its 1968 Uniform child custody Jurisdiction Act(the UCCJA).2 NCCUSL drafts and propos-es laws in areas where it believes Uniform -ity is important, but the laws becomeeffective only upon adoption by State leg-islatures. As of July 2001, 26 jurisdictionshad adopted the UCCJEA,3and it had beenintroduced in 2000 01 in the legislaturesof 10 UCCJEA governs State courts juris-diction to make and modify child -custodydeterminations, a term that expresslyincludes custody and visitation could choose the forum that woulddecide custody , parents had a legal incen-tive to abduct children. For example, aparent could take a child to a State towhich the child had no previous ties anda court in that State could exercise juris-diction and make or modify a custodydetermination.

5 Abducting parents benefit-ed under this system, but their seize andrun 11tactics exacted a heavy toll on chil-dren and the judicial system. Children slives were disrupted, and judicial re-sources were squandered as courts innumerous States often heard custodycases regarding the same the interstate nature of the prob-lem, an interstate solution was responded in 1968 with theUCCJA, which governed the existenceand exercise of Jurisdiction in initial Child-Custody determinations and cases involv-ing modification of existing orders. Thelaw also required States to enforce andnot modify sister States orders. The newrequirements were intended to removeparents legal incentive to abduct childrenin search of a friendly forum that wouldmake an initial custody order or modifyan existing UCCJA based Jurisdiction on a child sclose affiliation with a State. Specifically, itestablished four jurisdictional grounds:uHome State (reserved for the State inwhich the child has lived for at least 6months preceding commencement ofthe action).

6 USignificant connection (exists when aState has substantial evidence about achild as a result of the child s signifi-cant connections to that State).uEmergency (governs situations such asabandonment or abuse that requireimmediate protective action).uVacuum (applies when no other juris-dictional basis exists).Except in emergency cases, the UCCJA eliminated a child s physical presence in aState as grounds for exercising jurisdic-tion. As a result, a court could no longerbase Jurisdiction solely on a child s pres-ence in the State, nor would a child sabsence from the State necessarily de-prive the court of Jurisdiction . Under theUCCJA s extended home State rule, a left-behind parent could petition for custodyin the child s home State even after anabduction. The UCCJA also requiredStates to enforce and not modify validcustody and visitation orders made bysister and visitation disputes con-cerning the same child . When families areintact, children generally live in one ormore States with both parents.

7 After afamily breakup, one parent may move witha child to another State, often to pursue ajob opportunity or a new relationship orto return to extended family. The otherparent may remain in the original State ormove to another State. Additional movesmay occur over time, possibly to differentStates, back to the family s original State,or out of the and international moves involv-ing children raise challenging legal ques-tions as to which State (or country) hasand should exercise Jurisdiction to makean initial Child-Custody determination ormodify an existing custody order. Ques-tions also arise as to whether a custodydetermination made in one State (or coun-try) is enforceable in another State and, ifso, what procedures are available to se-cure and Congress have responded tothese issues by enacting laws ( , theUCCJA and the PKPA) that regulate courts Jurisdiction to make and modify custodyand visitation determinations and thatdictate the interstate effect such determi-nations are to be given in sister laws that affect child custody andvisitation have also been enacted.

8 In fact,it was this veritable alphabet soup oflaws the UCCJA, the PKPA, the ViolenceAgainst Women Act (the VAWA),7theHague Convention on the Civil Aspects ofInternational child Abduction (the HagueConvention),8and the International ChildAbduction Remedies Act (the ICARA)9 that prompted NCCUSL in 1997 to draft animproved Child-Custody Jurisdiction andenforcement statute. To understand thenew law, it is helpful to examine the legalbackdrop against which the UCCJEA Uniform child CustodyJurisdiction 1968, State courtsthroughout the United States could exer-cise Jurisdiction over a Child-Custody casebased on a child s presence in the also freely modified sister States orders because Supreme Court rul-ings had never settled the question ofwhether the Full Faith and Credit clause ofthe Constitution applied to legal climate fostered childabduction and forum shopping: Becauseparents with physical possession of aUnresolved theUCCJA was a major improvement overpre-1968 law governing Jurisdiction inchild- custody cases, some problemsremained.

9 The law did not eliminate thepossibility of two or more States havingconcurrent Jurisdiction ( , based onhome State and significant connectionjurisdiction), and the statute s prohibitionagainst simultaneous proceedings was notroutinely effective in preventing courtsin different States from exercising juris-diction and issuing conflicting custodyorders. In addition, contrary to the restric-tive interpretation of emergency jurisdic-tion intended by the drafters, some judgesused this basis of Jurisdiction to providepermanent relief, rather than to temporar-ily address an urgent problem until thecourt with regular Jurisdiction could conflicts also continued inmodification cases. For instance, when achild moved from his or her original homeState and established a new home State,courts in both States frequently assertedjurisdiction to modify an existing overlap often led to conflicting cus-tody orders and uncertainty for childrenand the UCCJA obligated courts toenforce and not modify custody orders ofsister States, it did not provide enforce-ment procedures to carry out this require-ment.

10 Litigants were left to discover localenforcement procedures on their own,and such procedures varied considerablyacross the country ( , contempt pro-ceedings, motions to enforce, motions togrant full faith and credit, and habeascorpusproceedings). The variety of Stateenforcement procedures delayed enforce-ment (sometimes to the point of denyingrelief, as in the case of weekend visitationinterference), added costs (due to multi-state variations and practices), made out-comes unpredictable, and sometimes al-lowed local courts to modify out-of-Stateorders, contrary to the UCCJA s addition, States passed the UCCJA withvariations in the language. For instance,four States omitted section 23, whichextends the principles of the Act to cus-tody orders made in other countries. Thevariety undermined the Uniform interpre-tation and application of the law acrossthe country and created loopholes thatled to the issuance of conflicting custodyorders. (These and other problems withthe UCCJA were documented by the Ob-stacles to the Recovery and Return ofParentally Abducted Children Project,3( , one may have home State and anoth-er significant connection Jurisdiction ), thePKPA gives priority to home State jurisdic-tion.)