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The Uniform Child-Custody Jurisdiction and Enforcement

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The Uniform Child-Custody Jurisdiction and Enforcement U.S. Department of Justice Office of Justice Programs Office of Juvenile Justice and Delinquency Prevention December 2001 The Uniform Child-Custody A Message From OJJDP Jurisdiction and America is a society with a substan- tial divorce rate. Each year, more Enforcement Act than 1,000,000 children in the United States are affected by the divorce of their parents, and of all children who are born to married parents this year, Patricia M. Hoff half are likely to experience a divorce in their families before they reach This Bulletin describes the Uniform Child- The Act requires State courts to enforce their 18th birthdays. Custody Jurisdiction and Enforcement Act valid child-custody and visitation determi- (the UCCJEA),1 the most recent in a series nations made by sister State courts. It also America is also a highly mobile socie- of laws designed to deter interstate pa- establishes innovative interstate enforce- ty. On the dissolution of family ties, it rental kidnapping and promote uniform ment procedures. is not uncommon that a parent, per- haps even both parents, may move jurisdiction and enforcement provisions The UCCJEA is intended as an improve- out of the State in which the family in interstate child-custody and visitation ment over the UCCJA. It clarifies UCCJA resided at the time of their separa- cases. The Office of Juvenile Justice and provisions that have received conflicting tion. Thus, it is not surprising that Delinquency Prevention (OJJDP) is pub- interpretations in courts across the coun- courts in different States are becom- lishing this Bulletin to provide current in- try, codifies practices that have effective- ing involved in child-custody and visi- formation about the UCCJEA to legislators ly reduced interstate conflict, conforms tation disputes concerning the same in States considering its adoption and to jurisdictional standards to those of the children. parents and practitioners in States that Federal Parental Kidnapping Prevention have already adopted the law. The Bulle- The Uniform Child-Custody Jurisdic- Act (the PKPA)6 to ensure interstate en- tin is not an official OJJDP endorsement tion and Enforcement Act, which is forceability of orders, and adds protec- of the Act. described in this Bulletin, has been tions for victims of domestic violence who proposed by the National Conference The UCCJEA is a uniform State law that move out of State for safe haven. of Commissioners on Uniform State was approved in 1997 by the National Laws. The proposed uniform State The UCCJEA, however, is not a substan- Conference of Commissioners on Uniform law is designed to deter interstate tive custody statute. It does not dictate State Laws (NCCUSL) to replace its 1968 parental kidnapping and to promote standards for making or modifying child- Uniform Child Custody Jurisdiction Act uniform jurisdiction and enforcement custody and visitation decisions; instead, (the UCCJA).2 NCCUSL drafts and propos- provisions in interstate child-custody es laws in areas where it believes uniform- it determines which States’ courts have and visitation cases. The Act has ity is important, but the laws become and should exercise jurisdiction to do so. been enacted by 25 States and the effective only upon adoption by State leg- A court must have jurisdiction (i.e., the District of Columbia and introduced into legislatures in several other islatures. As of July 2001, 26 jurisdictions power and authority to hear and decide a matter) before it can proceed to consider States. had adopted the UCCJEA,3 and it had been the merits of a case. The UCCJEA does not introduced in 2000–01 in the legislatures It is our hope that the information apply to child support cases. of 10 others.4 provided in this Bulletin will assist those considering the adoption of The UCCJEA governs State courts’ juris- this model law in their States. diction to make and modify “child-custody Legal Background determinations,” a term that expressly In a mobile society with a high rate of includes custody and visitation orders.5 divorce, courts in different States (and countries) often become involved in child-custody and visitation disputes con- child could choose the forum that would Unresolved problems. Although the cerning the same child. When families are decide custody, parents had a legal incen- UCCJA was a major improvement over intact, children generally live in one or tive to abduct children. For example, a pre-1968 law governing jurisdiction in more States with both parents. After a parent could take a child to a State to child-custody cases, some problems family breakup, one parent may move with which the child had no previous ties and remained. The law did not eliminate the a child to another State, often to pursue a a court in that State could exercise juris- possibility of two or more States having job opportunity or a new relationship or diction and make or modify a custody concurrent jurisdiction (e.g., based on to return to extended family. The other determination. Abducting parents benefit- home State and significant connection parent may remain in the original State or ed under this system, but their “seize and jurisdiction), and the statute’s prohibition move to another State. Additional moves run”11 tactics exacted a heavy toll on chil- against simultaneous proceedings was not may occur over time, possibly to different dren and the judicial system. Children’s routinely effective in preventing courts States, back to the family’s original State, lives were disrupted, and judicial re- in different States from exercising juris- or out of the country. sources were squandered as courts in diction and issuing conflicting custody numerous States often heard custody orders. In addition, contrary to the restric- Interstate and international moves involv- cases regarding the same children. tive interpretation of emergency jurisdic- ing children raise challenging legal ques- tion intended by the drafters, some judges Given the interstate nature of the prob- tions as to which State (or country) has used this basis of jurisdiction to provide lem, an interstate solution was needed. and should exercise jurisdiction to make permanent relief, rather than to temporar- NCCUSL responded in 1968 with the an initial child-custody determination or ily address an urgent problem until the UCCJA, which governed the existence modify an existing custody order. Ques- court with regular jurisdiction could act. and exercise of jurisdiction in initial child- tions also arise as to whether a custody Jurisdictional conflicts also continued in custody determinations and cases involv- determination made in one State (or coun- modification cases. For instance, when a ing modification of existing orders. The try) is enforceable in another State and, if child moved from his or her original home law also required States to enforce and so, what procedures are available to se- State and established a new home State, not modify sister States’ orders. The new cure enforcement. courts in both States frequently asserted requirements were intended to remove jurisdiction to modify an existing order. States and Congress have responded to parents’ legal incentive to abduct children This overlap often led to conflicting cus- these issues by enacting laws (i.e., the in search of a friendly forum that would tody orders and uncertainty for children UCCJA and the PKPA) that regulate courts’ make an initial custody order or modify and parents. jurisdiction to make and modify custody an existing order. and visitation determinations and that Although the UCCJA obligated courts to The UCCJA based jurisdiction on a child’s dictate the interstate effect such determi- enforce and not modify custody orders of close affiliation with a State. Specifically, it nations are to be given in sister States. sister States, it did not provide enforce- established four jurisdictional grounds: Other laws that affect child custody and ment procedures to carry out this require- visitation have also been enacted. In fact, ◆ Home State (reserved for the State in ment. Litigants were left to discover local it was this veritable alphabet soup of which the child has lived for at least 6 enforcement procedures on their own, laws—the UCCJA, the PKPA, the Violence months preceding commencement of and such procedures varied considerably 7 the Against Women Act (the VAWA), across the country (e.g., contempt pro- Hague Convention on the Civil Aspects of the action). ceedings, motions to enforce, motions to International Child Abduction (the Hague ◆ Significant connection (exists when a grant full faith and credit, and habeas Convention),8 and the International Child State has substantial evidence about a corpus proceedings). The variety of State Abduction Remedies Act (the ICARA)9— child as a result of the child’s signifi- enforcement procedures delayed enforce- that prompted NCCUSL in 1997 to draft an cant connections to that State). ment (sometimes to the point of denying improved child-custody jurisdiction and ◆ Emergency (governs situations such as relief, as in the case of weekend visitation enforcement statute. To understand the abandonment or abuse that require interference), added costs (due to multi- new law, it is helpful to examine the legal immediate protective action). state variations and practices), made out- backdrop against which the UCCJEA was ◆ comes unpredictable, and sometimes al- developed. Vacuum (applies when no other juris- dictional basis exists). lowed local courts to modify out-of-State orders, contrary to the UCCJA’s intent. The Uniform Child Custody Except in emergency cases, the UCCJA Jurisdiction Act eliminated a child’s physical presence in a In addition, States passed the UCCJA with State as grounds for exercising jurisdic- variations in the language. For instance, Overview. Before 1968, State courts tion. As a result, a court could no longer four States omitted section 23, which throughout the United States could exer- base jurisdiction solely on a child’s pres- extends the principles of the Act to cus- cise jurisdiction over a child-custody case ence in the State, nor would a child’s tody orders made in other countries.
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