Sunday, March 26, 2017

The Uniform Child Custody Jurisdiction and Enforcement Act

An area of some complexity that shows up in Family Law is jurisdiction for child custody cases.  And when I'm working with students who are preparing for the MEE, it's an area we spend some time on because it's important to know it well should it show up on the exam.  In other words, it could amount to a large percentage of the points in any given essay.

The Act to understand well in this regard is the Uniform Child Custody Jurisdiction and Enforcement Act which is far too many words and so after mentioning it once in an essay, just call it the UCCJEA.  The purpose of the Act is to avoid jurisdictional disputes with courts of other states in matters of child custody and visitation as well as promote interstate cooperation. It also aims to facilitate the interstate enforcement of custody and visitation orders.

And so a question may be raised in a fact pattern as to which state has jurisdiction to initially enter or to modify a child custody or visitation order.  First, we look to the home state of the child. A child's home state is the state in which the child lived with a parent (or a person acting as parent) for at least six consecutive months immediately before the commencement of the proceeding.  If the child is less than six months old then the home state will be the state where the child has lived since birth disregarding temporary absences.  A court in the home state of the child will have jurisdiction to enter or modify a custody or visitation order

It's possible, though, that a child had a home state (had been living in the state for at least 6 consecutive months) and within the last six months has moved out of state.  A court in the state that was recently the child's home state will have jurisdiction to enter a custody order if a parent or person acting as a parent continues to live in that state.

Further, it's also possible that no state will satisfy the home state test as stated above.  If no state has or accepts home state jurisdiction then a court will have jurisdiction to enter or modify a custody or visitation order if that court sits in a state in which the child and at least one parent (or persons acting as parents) have a significant connection and if substantial evidence concerning the child is available in that state.

When analyzing jurisdiction for these purposes, I would first look to apply the home state rules and then move on to the significant connection test if necessary.  And then note that the court that made the initial custody or visitation determination has exclusive continuing jurisdiction over the matter until neither the child nor the child's parents (or persons acting as a parent) continue to reside in the state or the child no longer has a significant connection with the state and substantial evidence relating to the matter is no longer available in the state.

Even if a court has jurisdiction as outlined above, the court may choose to decline jurisdiction if it determines that it is an inconvenient forum under the circumstances and that a court in another state is a more appropriate forum.  Finally, note that under some extreme circumstances, a court may have temporary emergency jurisdiction even if the general jurisdiction rules as outlined above are not satisfied.  This should be applied sparingly, though; a court will have temporary emergency jurisdiction if the child has been abandoned or if it is necessary in an emergency to protect the child because the child, the child's sibling(s), or the child's parent is threatened with or subjected to abuse.

No comments:

Post a Comment