Jurisdictional Provisions of the UCCJEA

There are two requirements under the UCCJEA for making or modifying a custody determination: (1) the court must have a basis of jurisdiction under the Act (i.e., subject-matter jurisdiction), and (2) the parties must be given notice and opportunity to be heard. Personal jurisdiction over a party or child—based on physical presence in or minimum contacts with the State—is not required. Moreover, a court that has personal jurisdiction over a party or child cannot adjudicate custody unless it has a basis for exercising jurisdiction under the Act.⁴⁴

The UCCJEA's jurisdictional provisions vary, based on whether a case involves an initial custody or visitation determination or modification of an existing order. This section describes the UCCJEA's jurisdictional provisions and provides examples that illustrate the intended effect of many of these provisions. It also describes two grounds on which courts may decline to exercise jurisdiction under the UCCJEA and includes examples of each.

Initial Jurisdiction

The UCCJEA establishes four bases for initial jurisdiction—home State, significant connection, more appropriate forum, and vacuum jurisdiction. It also authorizes courts to issue temporary relief on emergency grounds. These jurisdictional bases are discussed in the sections that follow.

Home State jurisdiction. The UCCJEA gives home State jurisdiction priority in initial child-custody proceedings. In doing so, the Act conforms to the PKPA and rejects the UCCJA's coequal treatment of home State and significant connection jurisdiction. Only in cases in which a child has no home State or the home State declines jurisdiction may another court exercise significant connection jurisdiction. This change is intended to significantly reduce the number of situations in which more than one State has jurisdiction over a child-custody matter. In turn, the incidence of conflicting custody orders being issued by courts in different States should also decrease.

Under the UCCJEA, a court has home State jurisdiction if it is located in the child's home State (as of the date proceedings are commenced) or if it is located in the State that was the child's home State within 6 months of the proceedings' commencement and the child's parent (or a person acting as his or her parent) continues to live in the State even after the child has been removed. This extended home State rule allows a left-behind parent to commence a custody proceeding within 6 months of a child's removal from the home State.

Example. A 2-year-old child, born and raised in Minnesota, is abducted by his mother before either parent has filed for custody. The boy and his mother move to Idaho. The left-behind father may file for an initial custody determination in Minnesota (which has home State jurisdiction) within 6 months of the child's removal. The child's absence from Minnesota does not deprive the State of jurisdiction. If the mother commences a custody proceeding in Idaho while Minnesota is the child's home State under the UCCJEA, the father can seek dismissal of the Idaho proceeding based on lack of jurisdiction. Assuming the notice requirements of section 108 are met, any order the father obtains in Minnesota is entitled to enforcement in Idaho.

Significant connection jurisdiction.⁴⁵ When a child has no home State or when a home State declines jurisdiction,⁴⁶ another State court may exercise jurisdiction if the child has sufficient ties to the State and substantial evidence concerning the child is available in the State. A child need not be physically present in a State for the State to exercise significant connection jurisdiction. More than one State may have jurisdiction on this basis, but only one State may exercise jurisdiction.⁴⁷ The statute resolves the conflict in favor of the first-filed proceeding. However, the courts are required to communicate, and the court in the State of the first-filed proceeding may defer to the court in the second State following judicial communication.⁴⁸

Example. A father and his child go to visit the child's paternal grandparents in Colorado. The father is reminded of the beauty of the mountains and decides not to return to Iowa, where his marriage had been faltering and his job prospects have dimmed. The family had been living in Iowa for 4 years. Within 2 months of his arrival in Colorado, the father files for custody there on significant connection grounds. The Colorado court lacks jurisdiction and may not proceed to the merits of the case unless Iowa, the child's home State, declines jurisdiction in favor of Colorado. However, if the mother does not commence a custody proceeding in Iowa within 6 months of the child's removal, Colorado becomes the child's home State and the Colorado court may then exercise jurisdiction and decide custody.

Example. A mother and father are high-tech professionals who have moved frequently during the previous several years to work for Internet companies. After 4 months in California, the father leaves the mother and their infant and returns to North Carolina, where the family had lived for 5 months preceding their move to California. The infant has been in daycare and has pediatricians and relatives in both States. The father's cross-country move prompts the couple to assess the viability of their marriage, and they decide to divorce. However, they cannot agree on custody, and the mother and father simultaneously commence separate custody proceedings in California and North Carolina. The parents have not lived in any State long enough for their child to have established a home State. Both California and North Carolina arguably have significant connection jurisdiction, but under the UCCJEA only one of them should exercise it. If a court learns from the required pleadings⁴⁹ that a proceeding has been commenced in a sister State, the court is required by the UCCJEA to stay its proceeding and communicate with the other court⁵⁰ to decide which proceeding should continue. If they cannot agree, the court with the first-filed case may move forward and the other court should dismiss its proceeding.

More appropriate forum jurisdiction. Under the UCCJEA, a third basis for initial jurisdiction exists when both the home State and significant connection State(s) decline jurisdiction in favor of another, more appropriate State on grounds of inconvenient forum or unjustifiable conduct.⁵¹

Example. The parents of a 10-year-old girl are separated but have not filed for custody. Pursuant to her parents' informal agreement, the girl remains with the father in the District of Columbia, where she goes to school. She spends the majority of her time with a housekeeper because her father is frequently out of town on business. The child spends one weekend a month in West Virginia with her mother. Because the mother works a night shift involving frequent overtime, many of the girl's weekend visits are spent at the homes of friends in her mother's neighborhood. Both sets of the child's grandparents live in Maryland. The father plans to move to Maryland at the end of the school year so the child can go to her grandparents after school, and he has a contract to purchase a house in Maryland when the school year ends. However, before the move, the father becomes increasingly concerned about the mother's absence during the child's visits. He files for custody in Maryland. Based on these facts, it is conceivable that courts in the District of Columbia (the child's home State) and West Virginia (a significant connection State) might decline jurisdiction in favor of Maryland, the child's soon-to-be home State. A decision to decline jurisdiction is discretionary and fact dependent.

Vacuum jurisdiction. Similar to the UCCJA, the UCCJEA provides that if no court has home State, significant connection, or more appropriate forum jurisdiction, an alternate court may fill the vacuum and exercise jurisdiction over an initial custody proceeding.⁵² This provision would apply to situations in which children fail to remain in any State long enough to form attachments (e.g., homeless children, children of migrant workers or military personnel, or children sent from relative to relative for temporary care).

Temporary emergency jurisdiction. Under the UCCJEA, courts have temporary emergency jurisdiction when a child in the State has been abandoned or when emergency protection is necessary because a child—or a sibling or parent of the child—has been subjected to or is threatened with mistreatment or abuse.⁵³ The UCCJEA narrows the UCCJA's definition of "emergency" by excluding neglect cases—thus bringing it into conformity with the PKPA—while expanding the definition to cover emergencies that put a child's parent or sibling at risk, such as those covered by the VAWA.

Under the UCCJEA, courts may exercise emergency jurisdiction and make temporary orders even if a proceeding has been commenced in another State. Immediate judicial communication is mandatory to resolve the emergency, protect the safety of the parties and the child, and determine how long a temporary order should remain in effect.

Notice and opportunity to be heard must be given⁵⁴ for a temporary emergency order to be enforceable in other States pursuant to the UCCJEA and PKPA. At a minimum, both laws require that notice be provided to any parent whose parental rights have not been terminated and to any person with physical custody of the child. Temporary custody or visitation provisions in a protection order that was obtained ex parte (i.e., without notice) are unenforceable in sister States under the UCCJEA and the PKPA. These provisions, however, may be enforceable within the issuing State if domestic violence laws or other laws so provide.

The duration of a temporary emergency custody order depends on whether custody has been or is being litigated elsewhere. If there is no prior custody order that is enforceable under the UCCJEA and no proceeding has been commenced in a court with jurisdiction, the temporary emergency custody order becomes a final determination (if it so provides) when the issuing State becomes the child's home State (i.e., in 6 months). Notice must have been given in accordance with the UCCJEA. If a previous order exists and/or a custody proceeding has been commenced in a court with jurisdiction, the temporary emergency custody order must specify an adequate period within which the person seeking emergency relief may obtain a custody order from the other court. The temporary order remains in effect until a custody order is obtained from the other State (within the specified period) or the specified period expires.

Example. Following a fight with her husband, a battered wife takes the couple's child from their Texas home to Utah and seeks refuge at a domestic violence shelter. In Utah, the mother files for custody of the child on emergency jurisdiction grounds. She gives her husband the requisite notice, but in the interest of safety, asks the court not to disclose her address to him.⁵⁵ The child's father does not respond to the suit. The court in Utah grants the mother temporary custody, stipulating that the order will become permanent after 6 months if no proceeding is commenced in Texas, the child's home State. The father, however, commences a custody proceeding in Texas soon after receiving notice of the Utah action. The mother receives notice of the proceeding via her attorney, and she petitions the Texas court to decline jurisdiction in favor of Utah on inconvenient forum grounds. The two courts communicate. The Texas court grants the mother's motion on finding that domestic violence has occurred and is likely to continue and that Utah can best protect the mother and child.⁵⁶ Following a hearing on the merits in the Utah court, the temporary Utah order is made permanent. The mother is granted custody, and the father is granted limited, supervised visitation.

Modification Jurisdiction

The UCCJEA addresses courts' jurisdiction to modify existing child-custody or visitation determinations in two complementary sections: section 202 establishes rules of continuing jurisdiction in the decree-granting State, and section 203 governs when another State may modify an existing decree.

Exclusive, continuing jurisdiction. The UCCJEA adopted a rule of exclusive, continuing jurisdiction similar to that in the PKPA.⁵⁷ Under the UCCJEA, an original decree court that exercised jurisdiction consistent with the Act has exclusive, continuing jurisdiction to modify its decree until one of the following occurs:

• The original decree court loses significant connection jurisdiction.

• The child, the child's parents, and any person acting as the child's parent no longer live in the State.

Only the decree State may determine whether it has significant connection jurisdiction. That is, a sister State's court may not substitute its judgment on this issue for that of the decree State's court. By contrast, either State court may determine that all parties identified in the statute have left the State.

Jurisdiction to modify determination. If an original decree State has exclusive, continuing jurisdiction, no other State may modify the decree State's custody order—even if the child moves and establishes a new home State. (In such a scenario, the noncustodial parent usually remains in the original decree State.) A court in the child's new home State (or any other State) cannot modify the initial decree unless the original decree State loses exclusive, continuing jurisdiction or declines to exercise it on inconvenient forum grounds, and then only if the child's new home State has jurisdiction under the UCCJEA.⁵⁸ These requirements are intended to eliminate the practice under the UCCJA in which a child's original home State and new home State both assert modification jurisdiction, which is likely to result in conflicting custody orders and confusion as to which order takes precedence. ⁵⁹ Conflicting orders have also caused many law enforcement officers to refuse help in enforcing an order because of uncertainty as to its validity.

Example. Following proceedings in Kansas (the child's home State), the child's father is granted custody. The mother moves to Oklahoma, where the child spends extended visits over summers and holidays. Two years later, when the child reaches school age, the mother refuses to return the child to Kansas at the end of the summer and enrolls the child in an elementary school in Oklahoma. She also files an action in Oklahoma to modify the Kansas order, seeking full custody of the child. The father challenges the Oklahoma court's jurisdiction and moves to dismiss the suit on grounds that Kansas has exclusive, continuing jurisdiction. He also seeks return of the child pursuant to the Kansas order. The father prevails based on the UCCJEA and the PKPA. Both statutes require enforcement of valid orders, and the validity of the Kansas order was uncontested. Oklahoma could not modify the Kansas order because Kansas had exclusive modification jurisdiction.

Declining Jurisdiction

Under the UCCJEA, a court with initial jurisdiction; exclusive, continuing jurisdiction; or modification jurisdiction may decline to exercise jurisdiction on two grounds: inconvenient forum and unjustifiable conduct.

Inconvenient forum. Under section 207 of the UCCJEA, a court may, after taking into account specified factors, determine that another State is better able to decide custody. These factors include whether domestic violence has occurred and, if so, which State can best protect the parties and child; how long the child has lived out of State; where the evidence is located; and which court is most familiar with the case.

Example. In the Kansas-Oklahoma example described above, the mother could petition the Kansas court to decline jurisdiction on grounds of inconvenient forum. However, the decision would be at the court's discretion, and the fact that the mother wrongfully withheld the child in Oklahoma might weigh heavily in the court's decision.

Unjustifiable conduct. Subject to specific exceptions,⁶⁰ section 208 of the UCCJEA requires a court to decline jurisdiction if such jurisdiction was created by the unjustifiable conduct of the party bringing the action. Furthermore, the Act requires the court to assess the wrongdoer necessary and reasonable expenses⁶¹ unless that party can prove that the assessment would be clearly inappropriate. Although the statute does not define "unjustifiable conduct," examples cited in the accompanying comment to section 208 include wrongful removal, retention, or concealment of a child.

Questions may arise as to how this section of the UCCJEA operates in domestic violence situations. The comment to section 208 explains that if a parent flees with a child to escape domestic violence and in the process violates a joint custody decree, that parent's case should not automatically be dismissed. Instead, an inquiry must be made into whether the flight was justified under the circumstances. The comment goes on to distinguish the case of an abusive parent who seizes a child and flees to another State to establish jurisdiction. In this case, he or she has engaged in unjustifiable conduct and the new State must decline to exercise jurisdiction.

Example. Without warning, a father snatches his son from a school bus stop in Arizona. He takes the child to Oregon and keeps their location hidden from the left-behind mother for 10 months. The boy's mother mistakenly believes that she cannot file for custody in Arizona (the child's home State) because the child is no longer physically present there. (Had she consulted a knowledgeable lawyer, she would have known that the child's absence from Arizona did not deprive the home State of jurisdiction as long as a custody action was commenced within 6 months of the boy's departure.) The father waits 16 months before filing for an initial custody order in Oregon and gives the mother notice of the proceeding. She promptly files a motion to dismiss on grounds that the father's conduct was unjustifiable. The court agrees, and it declines jurisdiction, dismisses the petition, and orders the father to pay the mother's attorney's fees and investigative costs. The mother then commences a custody action in an Arizona court, which exercises jurisdiction on significant connection grounds, the home State having declined its jurisdiction. The mother can then seek enforcement of the Oregon order in Arizona, using any of the enforcement procedures in the UCCJEA or other procedures available in that State. The UCCJEA and the PKPA require Arizona to enforce the mother's order.

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