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UCCJEA - Juvenile Justice Bulletin

UCCJEA - Juvenile Justice Bulletin

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01/05/2014

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U.S. Department of Justice
Office of Justice Programs
Office of Juvenile Justice and Delinquency Prevention
December 2001
A Message From OJJDP
America 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 birthdays.America 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 samechildren.The Uniform Child-Custody Jurisdic-tion and Enforcement Act, which isdescribed in this Bulletin, has beenproposed by the National Conferenceof Commissioners on Uniform StateLaws.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 otherStates.It is our hope that the informationprovided in this Bulletin will assistthose considering the adoption ofthis model law in their States.
The Act requires State courts to enforcevalid child-custody and visitation determi-nations made by sister State courts. It alsoestablishes innovative interstate enforce-ment procedures.The UCCJEA is intended as an improve-ment over the UCCJA. It clarifies UCCJAprovisions 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)
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to ensure interstate en-forceability of orders, and adds protec-tions for victims of domestic violence whomove out of State for safe haven.The UCCJEA, however, is not a substan-tive custody statute. 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 so.A court must have jurisdiction (i.e., 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 cases.
Legal Background
In a mobile society with a high rate ofdivorce, courts in different States (andcountries) often become involved in
The Uniform Child-CustodyJurisdiction andEnforcement Act
Patricia M. Hoff 
This Bulletin describes the Uniform Child-Custody Jurisdiction and Enforcement Act(the UCCJEA),
1
the 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. The Bulle-tin is not an official OJJDP endorsementof the Act.The UCCJEA is a uniform State law thatwas approved in 1997 by the NationalConference of Commissioners on UniformState Laws (NCCUSL) to replace its 1968Uniform Child Custody Jurisdiction Act(the UCCJA).
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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,
3
and it had beenintroduced in 2000–01 in the legislaturesof 10 others.
4
The UCCJEA governs State courts’ juris-diction to make and modify “child-custodydeterminations,” a term that expresslyincludes custody and visitation orders.
5
 
2
child 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. Abducting parents benefit-ed under this system, but their “seize andrun”
11
tactics 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 children.Given the interstate nature of the prob-lem, an interstate solution was needed.NCCUSL 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 order.The UCCJA based jurisdiction on a child’sclose affiliation with a State. Specifically, itestablished four jurisdictional grounds:
x
Home State (reserved for the State inwhich the child has lived for at least 6months preceding commencement ofthe action).
x
Significant connection (exists when aState has substantial evidence about achild as a result of the child’s signifi-cant connections to that State).
x
Emergency (governs situations such asabandonment or abuse that requireimmediate protective action).
x
Vacuum (applies when no other juris-dictional basis exists).Except in emergency cases, the UCCJAeliminated 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 States.child-custody and visitation disputes con-cerning the same child. When families areintact, children generally live in one ormore States with both parents. 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 country.Interstate 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 enforcement.States and Congress have responded tothese issues by enacting laws (i.e., 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 States.Other laws that affect child custody andvisitation have also been enacted. In fact,it was this veritable alphabet soup oflaws—the UCCJA, the PKPA, the ViolenceAgainst Women Act (the VAWA),
7
theHague Convention on the Civil Aspects ofInternational Child Abduction (the HagueConvention),
8
and 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 wasdeveloped.
The Uniform Child CustodyJurisdiction Act
Overview.
Before 1968, State courtsthroughout the United States could exer-cise jurisdiction over a child-custody casebased on a child’s presence in the State.Courts also freely modified sister States’orders because U.S. Supreme Court rul-ings had never settled the question ofwhether the Full Faith and Credit clause ofthe U.S. Constitution applied to custodydecrees.
10
This legal climate fostered childabduction and forum shopping: Becauseparents with physical possession of a
Unresolved problems.
Although theUCCJA was a major improvement overpre-1968 law governing jurisdiction inchild-custody cases, some problemsremained. The law did not eliminate thepossibility of two or more States havingconcurrent jurisdiction (e.g., 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 act.Jurisdictional 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 order.This overlap often led to conflicting cus-tody orders and uncertainty for childrenand parents.Although 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. Litigants were left to discover localenforcement procedures on their own,and such procedures varied considerablyacross the country (e.g., contempt pro-ceedings, motions to enforce, motions togrant full faith and credit, and
habeascorpus
proceedings). 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 intent.In 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
(e.g., one may have home State and anoth-er significant connection jurisdiction), thePKPA gives priority to home State jurisdic-tion. This priority is intended to limit jur-isdiction in initial custody cases to oneState, the child’s home State. The PKPA’shome State priority is designed to preventa significant connection State from exer-cising jurisdiction over a matter when thechild who is the subject of the proceedinghas a “home State.”
Exclusive, continuing jurisdiction.
Ex-clusive, continuing jurisdiction under thePKPA protects an original decree State’sjurisdiction to modify its own order. Thisprotection addresses an ambiguity in theUCCJA’s modification section that somecourts have interpreted as allowing achild’s new home State to exercise modifi-cation jurisdiction even when the decreeState (i.e., the child’s former home State)could still exercise jurisdiction on signifi-cant connection grounds. Under thePKPA, the original home State has exclu-sive, continuing jurisdiction to modify itsown order to the exclusion of all otherStates, including the child’s new homeState—assuming that the original homeState has jurisdiction under State law(e.g., significant connection) and that atleast one parent or the child continues tolive there. Moreover, every State, includ-ing a significant connection State, mustgrant full faith and credit to the homeState’s order.
Unresolved problems.
The PKPA did notsolve all of the problems it targeted, part-ly because of some confusion about itsrelationship to the UCCJA and the incon-sistencies between the two laws and part-ly because many lawyers and judges ig-nored the PKPA or were unaware of itsimpact on UCCJA practice. These prob-lems and inconsistencies are documentedin the
Obstacles Project Final Report.
18
Other Relevant Federal Laws
Some laws enacted after the UCCJA addeda Federal dimension to interstate and in-ternational child-custody practices thatwas unforeseen by the drafters of theUCCJA in 1968 (but which was consideredby drafters of the UCCJEA in 1997). Inaddition to the PKPA, these Federal lawsinclude the Full Faith and Credit provi-sions of the VAWA, enacted in 1994; theHague Convention, ratified in 1986; andthe ICARA, enacted in 1988.
19
The VAWA.
In recognition of the fact thatdomestic violence victims often leave theState where they were abused and needcontinuing protection in their new loca-tions, the VAWA provides, among otherthings, for interstate enforcement of pro-tection orders. Custody provisions incor-porated into protection orders, however,are not governed by the VAWA.
20
Theseprovisions are “custody determinations,”subject to the PKPA and State law govern-ing jurisdiction in child-custody cases.Neither the PKPA nor the UCCJA explicitlyaddresses the key concerns of domesticviolence victims who must litigate childcustody interstate. The UCCJEA, however,addresses these concerns with a numberof provisions. For instance, it protectsagainst disclosure of a victim’s address,expands emergency jurisdiction to casesin which a parent or sibling is at risk, andrequires courts to consider family abusein their “inconvenient forum” analysis.
The Hague Convention and the ICARA.
The Hague Convention
21
and the Federalstatute that implements it (the ICARA)
22
deal with international wrongful removaland retention of children. The Hague Con-vention establishes administrative andjudicial mechanisms to expedite the re-turn of children (usually to their countryof habitual residence) who have beenabducted or wrongfully retained and tofacilitate the exercise of visitation acrossinternational borders. Under the HagueConvention, children who are wrongfullyremoved from or retained in a contractingState (i.e., a country that is party to theConvention) are subject to prompt return.The UCCJEA specifically provides for theenforcement of Hague Convention returnorders and authorizes public officials tolocate and secure the return of childrenin Hague Convention cases. The UCCJEAcontains other provisions that clarifywhen foreign custody determinations(from Hague and non-Hague countries) areentitled to enforcement and when courtsin the United States must defer to the cus-tody jurisdiction of a foreign court.
Rationale Underlyingthe UCCJEA
Custody contestants have sometimesexploited jurisdictional ambiguities todraw out litigation, secure conflicting cus-tody orders, and delay (or deny) enforce-ment of valid custody and visitation or-ders. In these instances, resources thatcould have been used to help childrenwere instead spent on multistate litigation.which was carried out by the AmericanBar Association Center on Children andthe Law pursuant to a cooperative agree-ment with OJJDP.
12
) Although every Stateeventually enacted the UCCJA, the handfulof States that were slow to do so becamemagnets for forum-shopping parents.
The Parental KidnappingPrevention Act
To close existing gaps and bring greateruniformity to interstate child-custodypractice, Congress in 1980 enacted thePKPA, which requires State courts to:
x
Enforce and not modify (i.e., grant fullfaith and credit to) custody and vis-itation determinations made by sisterStates consistently with the PKPA,unless the original State no longerhas, or has declined to exercise,jurisdiction.
13
x
Defer to the “exclusive, continuingjurisdiction” (see below) of the de-cree State as long as that State exer-cised jurisdiction consistently with thePKPA when it made its determination,has jurisdiction under its own law, andremains the residence of the child orany contestant.
14
(“Contestant” is de-fined as a person, including a parent,who claims a right to custody or visita-tion rights with respect to a child.)
x
Refrain from exercising jurisdictionwhile another State is exercising juris-diction over a matter consistently withthe PKPA.
15
x
Ensure that the following persons areprovided reasonable notice and oppor-tunity to be heard: contestants, anyparent whose parental rights have notbeen terminated, and any person whohas physical custody of the child.
16
State courts that exercise jurisdiction con-sistently with the criteria in the PKPA areentitled as a matter of Federal law to havetheir custody and visitation orders givenfull faith and credit in sister States. Thesecourts also have exclusive, continuingjurisdiction to modify their own ordersunder circumstances stipulated in the law.The PKPA’s jurisdictional criteria resemblethose of the UCCJA, but there are signifi-cant differences. PKPA jurisdictional provi-sions are discussed in the sections thatfollow.
Home State priority.
The PKPA prioritizeshome State jurisdiction in initial custodycases.
17
Whereas two States may havejurisdiction over a case under the UCCJA

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