Endnotes
1. Uniform Child-Custody Jurisdiction and Enforcement Act (1997), 9(1A) U.L.A. 657 (1999). The text is accessible online at www.nccusl.org.
2. Uniform Child Custody Jurisdiction Act, 9(1A) U.L.A. 271 (1999).
3. Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, the District of Columbia, Georgia, Idaho, Iowa, Kansas, Maine, Minnesota, Montana, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Tennessee, Texas, Utah, Virginia, Washington, and West Virginia.
4. Florida, Hawaii, Illinois, Indiana, Maryland, Mississippi, Missouri, New Jersey, New York, and Rhode Island.
5. The terms "child-custody determination," "custody determination," and "order," as used in this Bulletin, refer to custody determinations and visitation determinations.
6. Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A.
7. Violence Against Women Act of 1994; Violence Against Women Act of 2000, 18 U.S.C. §§ 2265, 2266.
8. The complete text of the Hague Convention can be found at 51 Fed. Reg. 10,494 et seq. (1986) or online via the U.S. Department of State’s Web site at www.travel. state.gov, under "International Parental Child Abduction."
9. International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq.
10. Uniform Child Custody Jurisdiction Act, Prefatory Note. The Full Faith and Credit clause requires that full faith and credit "be given in each state to the public acts, records, and judicial proceedings of every other state" (U.S. Constitution, article IV, § 1).
11. Id.
12. Girdner, L.K., and Hoff, P.M., eds. 1993. Final Report: Obstacles to the Recovery and Return of Parentally Abducted Children. Washington, DC: American Bar Association Center on Children and the Law (hereinafter Obstacles Project Final Report). The Obstacles Project Final Report was considered by the UCCJEA drafting committee, and numerous recommendations from the report are reflected in the uniform act. In addition to suggesting amendments to the UCCJA and the PKPA, the Obstacles Project Final Report proposed an original "Act To Expedite Enforcement of Child Custody Determinations." The purpose of the statute was to alleviate the shortcomings and lack of uniformity in then-existing procedures for enforcing child-custody and visitation orders that had frustrated many parents trying to exercise their lawful courtordered rights. Article 3 of the UCCJEA incorporates many ideas from the proposed statute.
13. 28 U.S.C. § 1738A, "Full Faith and Credit Given to Child Custody Determinations."
14. 28 U.S.C. § 1738A(d). This section establishes the principle of "exclusive, continuing jurisdiction."
15. 28 U.S.C. § 1738A(g). This section prohibits simultaneous proceedings.
16. 28 U.S.C. § 1738A(e).
17. Like the UCCJA, the PKPA defines "home State" as the State in which a child has lived with a parent or person acting as a parent for at least 6 months preceding the commencement of a child-custody proceeding.
20. 18 U.S.C. § 2266. The VAWA’s definition of "protection order" expressly excludes child-custody orders issued pursuant to State child-custody laws (except to the extent that they are entitled to Full Faith and Credit under Federal law).
21. As of July 2001, the Hague Convention was in force between the United States and 49 countries. For a complete list of countries that are party to the Convention, see the U.S. Department of State’s Web site (www.travel.state.gov) or the Hague Conference on Private International Law’s Web site (www.hcch.net).
22. The Hague Convention, ratified in 1986, took effect in the United States in 1988 following enactment of the International Child Abduction Remedies Act.
23. UCCJA, section 1 (Purposes of Act; Construction of Provisions). The UCCJEA omitted a "purposes" clause for stylistic reasons: NCCUSL no longer includes clauses of this type in its uniform acts. The official comments note, however, that many of the original purposes of the UCCJA remain valid.
24. In re Michelle Lemond, 413 N.E.2d 228 (Ind. 1980). An extraordinary judicial panel—consisting of the Supreme Court of Indiana; the Court of Appeals of Indiana, First District; and the Chief Judge of the Court of Appeals—held two judges, a private attorney, and a county prosecutor in indirect criminal contempt for willfully and intentionally disobeying orders of the State Supreme Court and the mandate of the Court of Appeals in an interstate custody enforcement case brought pursuant to the UCCJA. Each judge and lawyer was fined $500 and charged with costs. The contempt proceeding stemmed from a custody dispute between a mother in Hawaii and her ex-husband, who retained custody of their daughter in Indiana. Proceeding in accordance with the UCCJA, the mother sought to enforce the Hawaiian court order in Indiana. The father resisted at every level of the State’s courts.
After 3 years of litigation, the mother finally prevailed; the father had exhausted his remedies in the State courts, and it was expected that the orders of the State Supreme Court and the Court of Appeals would be honored and the child returned to her mother. However, the father’s counsel staged an 11th hour attempt to shield his client from the orders of Indiana’s highest courts by initiating the filing of a CHINS (Child In Need of Services) petition by the county prosecutor in juvenile court. The juvenile court issued the CHINS petition minutes before the Circuit Court’s issuance of a writ of habeas corpus ordering the return of the child to her mother. However, the Circuit Judge assisted the father’s efforts by ordering that the writ not be executed for 4 hours and then disqualifying himself from hearing the CHINS petition. A new judge was named to hear the CHINS petition, and it was this judge who found the daughter in need of services and ordered that she be detained for a mental examination.
Characterizing the sole legal issue in the contempt proceeding as whether the juvenile court’s jurisdiction was properly invoked, the courts in this case held that they would "not tolerate the attempted use of emergency jurisdiction to reopen a fully litigated and decided custody battle" (413 N.E.2d at 245). The courts "became convinced that [the CHINS hearing] was not a good faith effort to help a child in need of services. Rather, it was a well-orchestrated effort to thwart the orders of these Courts by prostituting the emergency authority of a juvenile court" (id. at 238). The juvenile court judge should have recognized the CHINS petition for what it was: "nothing more than a pretense for the judge assuming jurisdiction," a sham designed to avoid the force and effect of the writ (id. at 242).
25. 716 P.2d 991 (Cal. 1986), rev’d, 484 U.S. 400, 107 S. Ct. 2433 (1987).
26. UCCJEA, section 102(4) (definition of "child-custody proceeding").
27. UCCJEA, section 201 (Initial Child-Custody Jurisdiction).
28. UCCJEA, section 202 (Exclusive, Continuing Jurisdiction). See also UCCJEA, section 102(13), which defines a "person acting as a parent" as "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."
29. UCCJEA, section 204 (Temporary Emergency Jurisdiction).
30. UCCJEA, section 207 (Inconvenient Forum).
31. UCCJEA, section 208 (Jurisdiction Declined by Reason of Conduct).
32. UCCJEA, section 304 (Temporary Visitation).
33. UCCJEA, section 305 (Registration of Child-Custody Determination).
34. UCCJEA, sections 308–310 (Expedited Enforcement of Child-Custody Determination; Service of Petition and Order; Hearing and Order).
35. UCCJEA, section 311 (Warrant To Take Physical Custody of Child).
36. UCCJEA, sections 315–317 (Role of [Prosecutor or Public Official]; Role of [Law Enforcement]; Costs and Expenses). In States that enact these sections, prosecutors (or other designated public officials) and law enforcement officers are able to use the procedures to locate children, return them to the jurisdiction of the court, and enforce custody determinations.
37. UCCJEA, section 102(4) (definition of "child-custody proceeding").
38. UCCJEA, section 102(3)(d). See comment to UCCJEA, section 102: "By excluding proceedings involving monetary obligations, this Act continues the notion of divided jurisdiction. A court may well have jurisdiction to dissolve the marriage or to make an order for child support without having jurisdiction to make a custody determination. For a recent case, see Stevens v. Stevens, 682 N.E.2d 1309 (Ind. Ct. App. 1997)."
39. UCCJEA, section 103 (Proceedings Governed by Other Law).
40. UCCJEA, section 102(3). Temporary orders are expressly included in the UCCJEA’s definition of "child-custody determination." This definition is consistent with the PKPA definition and clarifies an ambiguity in section 2(2) of the UCCJA.
41. UCCJEA, section 105 (International Application of [Act]).
42. 51 Fed. Reg. 10,510.
43. UCCJEA, section 104 (Application to Indian Tribes).
44. UCCJEA, section 201(c). Personal jurisdiction over a party or a child is neither necessary nor sufficient to make a custody determination.
45. See UCCJEA, section 201(a)(2)(A) and (B), which provide that significant connection jurisdiction exists when "(A) 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 (B) substantial evidence is available in this State concerning the child’s care, protection, training, and personal relationships; . . . ."
46. Under the UCCJEA, a court with jurisdiction may decline to exercise it if another State is a more convenient forum (section 207) or the petitioner has engaged in unjustifiable conduct (section 208).
47. UCCJEA, section 206 (Simultaneous Proceedings), part (a).
48. UCCJEA, section 206 (Simultaneous Proceedings), part (b); section 110 (Communication Between Courts).
49. UCCJEA, section 209 (Information To Be Submitted to Court).
50. UCCJEA, section 206 (Simultaneous Proceedings), part (b).
51. UCCJEA, section 201(a)(3).
52. UCCJEA, section 201(a)(4).
53. UCCJEA, section 204.
54. UCCJEA, section 205(a), and PKPA, 28 U.S.C. § 1738A(e).
55. UCCJEA, sections 209(a) and (e) protect against disclosure of addresses and other identifying information in the pleadings when disclosure would jeopardize a child’s or a party’s health, safety, or liberty. If a State has adequate protections in existing law, it may reference them in section (a) and delete section (e).
56. UCCJEA, section 207(b)(1).
57. UCCJEA, section 202 (Exclusive, Continuing Jurisdiction).
58. UCCJEA, section 203 (Jurisdiction To Modify Determination).
59. The UCCJA prohibition against simultaneous proceedings was designed to prevent this situation, but courts in two or more States often proceed with their custody actions and issue conflicting orders notwithstanding the statutory prohibition.
60. UCCJEA, section 208(a)(1), (2), (3).
61. UCCJEA, section 208(c). Necessary and reasonable expenses include costs, communication expenses, attorney’s fees, investigative fees, expenses for witnesses, travel expenses, and childcare expenses during the course of the proceedings.
62. UCCJEA, section 303 (Duty To Enforce).
64. See comment to UCCJEA, section 305, which gives as an example a foreign parent seeking an advance determination of whether a foreign custody order will be recognized and enforced before sending a child to the United States for visitation.
65. This author favors retaining a child-custody registry provision in State enactments of the UCCJEA. For a detailed discussion of this issue, see Hoff, 1998.
68. Recoverable costs include communication expenses, attorney’s fees, investigative fees, expenses for witnesses, travel expenses, and childcare expenses during the course of the proceedings.
69. UCCJEA, section 311 (Warrant To Take Physical Custody of Child).
70. UCCJEA, section 315 (Role of [Prosecutor or Public Official]).
71. This statutory authority should remove the threat of civil liability that influences many law enforcement decisions in child recovery situations.
| Previous | Contents | Next |
 |
|
| The Uniform Child-Custody Jurisdiction and Enforcement Act | |