Legal Background

In a mobile society with a high rate of divorce, courts in different States (and countries) often become involved in child-custody and visitation disputes concerning the same child. When families are intact, children generally live in one or more States with both parents. After a family breakup, one parent may move with a child to another State, often to pursue a job opportunity or a new relationship or to return to extended family. The other parent may remain in the original State or move to another State. Additional moves may occur over time, possibly to different States, back to the family's original State, or out of the country.

Interstate and international moves involving children raise challenging legal questions as to which State (or country) has and should exercise jurisdiction to make an initial child-custody determination or modify an existing custody order. Questions also arise as to whether a custody determination made in one State (or country) is enforceable in another State and, if so, what procedures are available to secure enforcement.

States and Congress have responded to these issues by enacting laws (i.e., the UCCJA and the PKPA) that regulate courts' jurisdiction to make and modify custody and visitation determinations and that dictate the interstate effect such determinations are to be given in sister States. Other laws that affect child custody and visitation have also been enacted. In fact, it was this veritable alphabet soup of laws—the UCCJA, the PKPA, the Violence Against Women Act (the VAWA),⁷ the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention),⁸ and the International Child Abduction Remedies Act (the ICARA)⁹—that prompted NCCUSL in 1997 to draft an improved child-custody jurisdiction and enforcement statute. To understand the new law, it is helpful to examine the legal backdrop against which the UCCJEA was developed.

The Uniform Child Custody Jurisdiction Act

Overview. Before 1968, State courts throughout the United States could exercise jurisdiction over a child-custody case based on a child's presence in the State. Courts also freely modified sister States' orders because U.S. Supreme Court rulings had never settled the question of whether the Full Faith and Credit clause of the U.S. Constitution applied to custody decrees.¹⁰ This legal climate fostered child abduction and forum shopping: Because parents with physical possession of a child could choose the forum that would decide custody, parents had a legal incentive to abduct children. For example, a parent could take a child to a State to which the child had no previous ties and a court in that State could exercise jurisdiction and make or modify a custody determination. Abducting parents benefited under this system, but their "seize and run"¹¹ tactics exacted a heavy toll on children and the judicial system. Children's lives were disrupted, and judicial resources were squandered as courts in numerous States often heard custody cases regarding the same children.

Given the interstate nature of the problem, an interstate solution was needed. NCCUSL responded in 1968 with the UCCJA, which governed the existence and exercise of jurisdiction in initial child-custody determinations and cases involving modification of existing orders. The law also required States to enforce and not modify sister States' orders. The new requirements were intended to remove parents' legal incentive to abduct children in search of a friendly forum that would make an initial custody order or modify an existing order.

The UCCJA based jurisdiction on a child's close affiliation with a State. Specifically, it established four jurisdictional grounds:

• Home State (reserved for the State in which the child has lived for at least 6 months preceding commencement of the action).

• Significant connection (exists when a State has substantial evidence about a child as a result of the child's significant connections to that State).

• Emergency (governs situations such as abandonment or abuse that require immediate protective action).

• Vacuum (applies when no other jurisdictional basis exists).

Except in emergency cases, the UCCJA eliminated a child's physical presence in a State as grounds for exercising jurisdiction. As a result, a court could no longer base jurisdiction solely on a child's presence in the State, nor would a child's absence from the State necessarily deprive the court of jurisdiction. Under the UCCJA's extended home State rule, a left-behind parent could petition for custody in the child's home State even after an abduction. The UCCJA also required States to enforce and not modify valid custody and visitation orders made by sister States.

Unresolved problems. Although the UCCJA was a major improvement over pre-1968 law governing jurisdiction in child-custody cases, some problems remained. The law did not eliminate the possibility of two or more States having concurrent jurisdiction (e.g., based on home State and significant connection jurisdiction), and the statute's prohibition against simultaneous proceedings was not routinely effective in preventing courts in different States from exercising jurisdiction and issuing conflicting custody orders. In addition, contrary to the restrictive interpretation of emergency jurisdiction intended by the drafters, some judges used this basis of jurisdiction to provide permanent relief, rather than to temporarily address an urgent problem until the court with regular jurisdiction could act. Jurisdictional conflicts also continued in modification cases. For instance, when a child moved from his or her original home State and established a new home State, courts in both States frequently asserted jurisdiction to modify an existing order. This overlap often led to conflicting custody orders and uncertainty for children and parents.

Although the UCCJA obligated courts to enforce and not modify custody orders of sister States, it did not provide enforcement procedures to carry out this requirement. Litigants were left to discover local enforcement procedures on their own, and such procedures varied considerably across the country (e.g., contempt proceedings, motions to enforce, motions to grant full faith and credit, and habeas corpus proceedings). The variety of State enforcement procedures delayed enforcement (sometimes to the point of denying relief, as in the case of weekend visitation interference), added costs (due to multistate variations and practices), made outcomes unpredictable, and sometimes allowed local courts to modify out-of-State orders, contrary to the UCCJA's intent.

In addition, States passed the UCCJA with variations in the language. For instance, four States omitted section 23, which extends the principles of the Act to custody orders made in other countries. The variety undermined the uniform interpretation and application of the law across the country and created loopholes that led to the issuance of conflicting custody orders. (These and other problems with the UCCJA were documented by the Obstacles to the Recovery and Return of Parentally Abducted Children Project, which was carried out by the American Bar Association Center on Children and the Law pursuant to a cooperative agreement with OJJDP.¹²) Although every State eventually enacted the UCCJA, the handful of States that were slow to do so became magnets for forum-shopping parents.

The Parental Kidnapping Prevention Act

To close existing gaps and bring greater uniformity to interstate child-custody practice, Congress in 1980 enacted the PKPA, which requires State courts to:

• Enforce and not modify (i.e., grant full faith and credit to) custody and visitation determinations made by sister States consistently with the PKPA, unless the original State no longer has, or has declined to exercise, jurisdiction.¹³

• Defer to the "exclusive, continuing jurisdiction" (see below) of the decree State as long as that State exercised jurisdiction consistently with the PKPA when it made its determination, has jurisdiction under its own law, and remains the residence of the child or any contestant.¹⁴ ("Contestant" is defined as a person, including a parent, who claims a right to custody or visitation rights with respect to a child.)

• Refrain from exercising jurisdiction while another State is exercising jurisdiction over a matter consistently with the PKPA.¹⁵

• Ensure that the following persons are provided reasonable notice and opportunity to be heard: contestants, any parent whose parental rights have not been terminated, and any person who has physical custody of the child.¹⁶

State courts that exercise jurisdiction consistently with the criteria in the PKPA are entitled as a matter of Federal law to have their custody and visitation orders given full faith and credit in sister States. These courts also have exclusive, continuing jurisdiction to modify their own orders under circumstances stipulated in the law.

The PKPA's jurisdictional criteria resemble those of the UCCJA, but there are significant differences. PKPA jurisdictional provisions are discussed in the sections that follow.

Home State priority. The PKPA prioritizes home State jurisdiction in initial custody cases.¹⁷ Whereas two States may have jurisdiction over a case under the UCCJA (e.g., one may have home State and another significant connection jurisdiction), the PKPA gives priority to home State jurisdiction. This priority is intended to limit jurisdiction in initial custody cases to one State, the child's home State. The PKPA's home State priority is designed to prevent a significant connection State from exercising jurisdiction over a matter when the child who is the subject of the proceeding has a "home State."

Exclusive, continuing jurisdiction. Exclusive, continuing jurisdiction under the PKPA protects an original decree State's jurisdiction to modify its own order. This protection addresses an ambiguity in the UCCJA's modification section that some courts have interpreted as allowing a child's new home State to exercise modification jurisdiction even when the decree State (i.e., the child's former home State) could still exercise jurisdiction on significant connection grounds. Under the PKPA, the original home State has exclusive, continuing jurisdiction to modify its own order to the exclusion of all other States, including the child's new home State—assuming that the original home State has jurisdiction under State law (e.g., significant connection) and that at least one parent or the child continues to live there. Moreover, every State, including a significant connection State, must grant full faith and credit to the home State's order.

Unresolved problems. The PKPA did not solve all of the problems it targeted, partly because of some confusion about its relationship to the UCCJA and the inconsistencies between the two laws and partly because many lawyers and judges ignored the PKPA or were unaware of its impact on UCCJA practice. These problems and inconsistencies are documented in the Obstacles Project Final Report.¹⁸

Other Relevant Federal Laws

Some laws enacted after the UCCJA added a Federal dimension to interstate and international child-custody practices that was unforeseen by the drafters of the UCCJA in 1968 (but which was considered by drafters of the UCCJEA in 1997). In addition to the PKPA, these Federal laws include the Full Faith and Credit provisions of the VAWA, enacted in 1994; the Hague Convention, ratified in 1986; and the ICARA, enacted in 1988.¹⁹

The VAWA. In recognition of the fact that domestic violence victims often leave the State where they were abused and need continuing protection in their new locations, the VAWA provides, among other things, for interstate enforcement of protection orders. Custody provisions incorporated into protection orders, however, are not governed by the VAWA.²⁰ These provisions are "custody determinations," subject to the PKPA and State law governing jurisdiction in child-custody cases.

Neither the PKPA nor the UCCJA explicitly addresses the key concerns of domestic violence victims who must litigate child custody interstate. The UCCJEA, however, addresses these concerns with a number of provisions. For instance, it protects against disclosure of a victim's address, expands emergency jurisdiction to cases in which a parent or sibling is at risk, and requires courts to consider family abuse in their "inconvenient forum" analysis.

The Hague Convention and the ICARA. The Hague Convention²¹ and the Federal statute that implements it (the ICARA)²² deal with international wrongful removal and retention of children. The Hague Convention establishes administrative and judicial mechanisms to expedite the return of children (usually to their country of habitual residence) who have been abducted or wrongfully retained and to facilitate the exercise of visitation across international borders. Under the Hague Convention, children who are wrongfully removed from or retained in a contracting State (i.e., a country that is party to the Convention) are subject to prompt return. The UCCJEA specifically provides for the enforcement of Hague Convention return orders and authorizes public officials to locate and secure the return of children in Hague Convention cases. The UCCJEA contains other provisions that clarify when foreign custody determinations (from Hague and non-Hague countries) are entitled to enforcement and when courts in the United States must defer to the custody jurisdiction of a foreign court.

The Uniform Child-Custody Jurisdiction and Enforcement Act	Juvenile Justice Bulletin • December 2001