CHILD CUSTODY AND VISITATION JURISDICTION UNDER THE UCCJEA
When there are disputes involving the children of parents who reside in
different states, where the child resides, or more accurately where they
have resided in the recent past, may determine which court can properly
adjudicate the dispute - be it the establishment of a custody or visitation
court order, or modifications of such orders. Understanding the rules
relating to interstate custody jurisdiction is a key aspect of a mindful
and realistic approach to child-related issues, and can save you a lot
of futile effort and expense from the get-go.
The Uniform Child Custody Jurisdiction and Enforcement Act (here "the
UCCJEA") is a uniform act created in 1997 that has to be adopted
in any state in order to apply. It is presently enacted in California
(Fam. C. § 3400,
et seq.) and in 48 other states (the exception being Massachusetts). It creates
jurisdictional limitations that severely limit the exercise of custody
and visitation jurisdiction by any court within a State that has adopted
it. Its purpose is - surprise! - to create uniformity in custody decision-making
among the states. Under the UCCJEA,
there can be only one courthouse in the nation that can properly have subject matter jurisdiction
over custody and visitation issues
at a given point in time. It ensures that a jurisdictionally-proper custody/visitation order will
be recognized and enforced across state lines.
Marriage of Nurie (2009) 176 CA4th 478, 497, 98 CR3d 200, 217.
- SCOPE OF UCCJEA JURISDICTION
Fam.C. § 3402(d), the UCCJEA applies in
all "child custody proceedings, meaning any proceeding in which legal
custody, physical custody or visitation is an issue, including:
• Marital actions (dissolution, nullity or legal separation);
• Juvenile court dependency proceedings;
• Termination of parental rights proceedings;
• Guardianship proceedings;
• Paternity actions; and
• Domestic violence proceedings.
The UCCJEA does not apply in adoption, juvenile delinquency, contractual
emancipation, or emergency medical care proceedings. Also, a custody proceeding
concerning an Indian child, as defined in the Indian Child Welfare Act
(ICWA, 25 USC § 1901,
et seq.), is not subject to the UCCJEA to the extent that it is governed by the
ICWA. Fam.C. § 3404(a).
Internationally, under the UCCJEA a foreign country must be treated the
same as a state of the United States. Thus, a child custody determination
made by a foreign country under factual circumstances that are in
substantial conformity with the UCCJEA usually must be
recognized and enforced by a U.S. court. Fam.C. §§ 3405(a) & (b), 3443(a). An exception
lies if the foreign country's child custody law
violates fundamental principles of human rights. Fam.C. § 3405(c).
- BURDEN OF PROOF IN UCCEA JURISDICTIONAL CONTESTS
The party initiating a California custody proceeding has the burden of
establishing this state's UCCJEA jurisdiction.
In re Baby Boy M. (2006) 141 CA4th 588, 599, 46 CR3d 196, 203. Presumably and as with civil
litigation in general, the standard of proof is by a preponderance of
evidence, however no reported case has provided an exact statement of
the standard of proof.
- UCCJEA JURISDICTIONAL TESTS AND PRIORITY
The UCCJEA provides a priority hierarchy of four jurisdictional tests for an
initial custody determination.
Fam.C. § 3402(h). With the exception of emergency jurisdiction for under
Fam. C. § 3424, a California court is empowered to hear and determine the custody/visitation
matter only if one of these four tests is satisfied at the time the litigation
Fam.C. § 3421(a). The child's best interests, physical presence/personal jurisdiction,
and priority in time as to competing child custody filings in different
not determinative of which forum state has UCCJEA jurisdiction to adjudicate a given child's
custody at a given time.
The first jurisdictional test is whether California is the child's "home state", and under
Fam.C. § 3421(a)(2) & (b) satisfaction of this test is given
absolute priority over the results of the other three tests in all initial custody/visitation
determinations. Pursuant to Fam. C. § 3421(a)(1), California may
exercise custody jurisdiction if it
either is (a) the child's "home state" on the date the pleading
or (b) was the child's home state within six months before commencement
of the proceeding and the child is absent from California but a parent
or "person acting as a parent" continues to live in California.
"Home state" is defined as the state where the child lived with
a parent or "person acting as a parent" for
at least six consecutive months immediately before commencement of the custody proceeding. If the child
is less than six months old, the state where he or she lived from birth
with any of such persons.
Fam.C. § 3402(g).
Periods of temporary absence are disregarded.
Marriage of Nurie (2009) 176 CA4th 478, 492, 98 CR3d 200, 213, fn. 12: California was the
child's home state even though the child was taken to Pakistan for
temporary visit at four months of age and then kept there by the mother,
where father filed a California dissolution of marriage action four months later.
The home state requires the child be born; no state has UCCJEA jurisdiction
over an unborn child.
Haywood v. Super.Ct. (Haywood) (2000) 77 CA4th 949, 955, 92 CR2d 182, 186–187.
Until the six month period for filing an action has elapsed, forum states
receiving a custody/visitation petition must defer to a UCCJEA home state
even where no action is pending in the home state.
Marriage of Newsome (1998) 68 CA4th 949, 957–959, 80 CR2d 555, 560–561. Therefore,
where no action is commence in the home state and the six month period
of the child being in the new state comes to pass, the new state becomes
the child's home state for UCCJEA jurisdictional testing purposes.
The second test for UCCJEA custody/visitation jurisdiction is the "substantial connection/significant evidence test", and it is construed narrowly such that the child's and parents'
connections with California must be compared and contrasted with connections
with another state. If (a)
no state is the child's home state or a court of a
home state declines to exercise jurisdiction because it is an inconvenient forum (per Fam. C. § 3427) or due to
a party's unjustifiable conduct (per Fam. C. § 3428; both of
these grounds for declined UCCJEA jurisdiction are discussed below), (b)
the child and at least one parent (or person acting as a parent) have a
significant connection with the non-home forum state
other than mere physical presence (see
Marriage of Newsome (1998) 68 CA4th 949, 959, 80 CR2d 555, 561: maximum contacts required
between the child, parents, and forum state; more than required for mere
in personam jurisdiction or in rem jurisdiction over the res/marital status), and (c)
substantial evidence is available in this state concerning the child's best interests,
then such non-home forum state may exercise UCCJEA jurisdiction under
the second test.
Fam.C. § 3421(a)(2)(A) & (B). Unlike the home state jurisdiction test (which tests events occurring
at the time the action is commenced), the significant connection/substantial
evidence jurisdiction test examines
events occurring at the time the jurisdictional determination is made such that there is a wider range of relevant evidence that a proponent
of this test can marshal for examination by the court.
Marriage of Nurie (2009) 176 CA4th 478, 510, 98 CR3d 200, 227–228.
The third test for UCCJEA custody/visitation jurisdiction is the "declined jurisdiction/more appropriate" forum test. Essentially, the test is whether all other courts with
home state or significant connection/substantial evidence jurisdiction have
declined to exercise their jurisdiction on the ground that the court of the proposed forum state is "more
appropriate" to determine custody of the child under
Fam.C. § 3427 (inconvenient forum) or § 3428 (unjustifiable conduct).
Fam.C. § 3421(a)(3).
The fourth test for UCCJEA custody/visitation jurisdiction is the "default" forum test. Under § 3421 (a)(4), a court has UCCJEA jurisdiction
to make an initial custody determination if
no court of any other state would have jurisdiction under the first three tests. See
In re Baby Boy M. (2006) 141 CA4th 588, 600, 46 CR3d 196, 204: because Georgia courts
potentially had significant connections, a California court could not exercise §
3421 (a)(4) "default" jurisdiction.
- TEMPORARY EMERGENCY JURISDICTION
Despite the priority hierarchy of the four above-mentioned UCCJEA tests
for an initial custody determination and despite the satisfaction of any
or all of those tests in another forum, following a full evidentiary hearing
(not mere allegations as found in a request for a temporary restraining
Marriage of Fernandez–Abin & Sanchez (2011) 191 CA4th 1015, 1042, 120 CR3d 227, 247) any state can exercise "temporary emergency jurisdiction" if (a) the child is
present in the state, and
either (b) the child has been left
without provision for reasonable and necessary care or supervision or (c) jurisdiction is a "necessary emergency" to protect the child because the child, or child's sibling or
parent, is subjected to or threatened with "mistreatment or abuse".
Fam.C. § 3424(a). Unlike under the predecessor UCCJA (which narrowly defined mistreatment
and abuse by inclusion of a necessary showing of "immediate and substantial
harm" as grounds for emergency jurisdiction), the UCCJEA emergency
grounds are broadly construed, and "particularly include cases involving
Fam.C. § 3424(e). Not only will actual mistreatment, neglect, and abuse support UCCJEA emergency
jurisdiction, but also the
possibility of the truth of allegations of such harm will support such jurisdiction.
In re Nada R. (2001) 89 CA4th 1166,1174, 108 CR2d 493, 500.
However, UCCJEA emergency jurisdiction is, by nature,
temporary. If an otherwise UCCJEA-compliant (i.e. jurisdiction previously found
under one of the four above-described tests) custody order is already
or an initial custody or custody modification proceeding has been commenced
in another forum having UCCJEA jurisdiction under one of the four tests,
then an emergency jurisdiction court may exercise such jurisdiction only
to issue a temporary custody order for a
limited period of time that
specifies the time period the emergency order is to remain in effect.
Fam.C. § 3424(c). Such period of time is measured by (a) the duration of the ongoing risk
that caused the emergency (see
In re Jorge G. (2008) 164 CA4th 125, 132, 78 CR3d 552, 557–558), and (b) a reasonably
adequate period for the person invoking emergency jurisdiction to get
an initial or modifying order from the non-emergency forum state with
UCCJEA jurisdiction under one of the four above-described tests.
In re A.C. (2005) 130 CA4th 854, 863, 30 CR3d 431, 437.
Moreover, once the emergency jurisdiction court is alerted to the existence
of a non-emergency pending action in a court otherwise "substantially
in accordance with" non-emergency UCCJEA jurisdiction (or vice versa),
the two judges have a sua sponte (i.e. on the court's own motion)
affirmative duty immediately communicate with each other to "resolve
the emergency, protect the safety of the parties and the child, and determine
a period for the duration of the temporary order."
Fam.C. § 3424(d); see
Alan S., Jr. v. Super.Ct. (Mary T.) (2009) 172 CA4th 238, 245, 91 CR3d 241, 246. The purpose of the communication
is also for the two courts, together, to determine which of them is the
"more appropriate" forum, in light of the priority of the four
above-mentioned tests, to exercise jurisdiction. Fam.C. § 3426(b).
If the court having jurisdiction "substantially in accordance with"
the UCCJEA does not determine that the emergency jurisdiction court is
a "more appropriate" forum, the emergency jurisdiction court
shall dismiss its custody proceeding. Fam.C. § 3426(b). On appeal, noncompliance
with this duty is tested from the
prejudicial error standard.
In re C.T. (2002) 100 CA4th 101, 111, 121 CR2d 897, 906–907. Parties are allowed
to participate either during the inter-court communication (and have a
record created of such communication) or, at minimum, be given an opportunity
to be heard prior to the courts' final determination.
Fam.C. § 3410(b) & (c).
However, an emergency jurisdiction court can, absent a competing custody
proceeding in a state with UCCJEA jurisdiction under one of the four above-mentioned
tests, make a custody/visitation order of longer duration that one that
is merely temporary. The emergency jurisdiction court can make a child
custody order that remains in effect until an order is obtained from another
state having UCCJEA jurisdiction under one of the four tests. If no such
proceeding is commenced in such other state, an emergency child custody
determination becomes a
final determination, provided the order so states and the emergency jurisdiction forum state
becomes the child's home state by virtue of six months of continuous
Fam.C. § 3424(b);
In re Angel L. (2008) 159 CA4th 1127, 1138, 72 CR3d 88, 95.
- EXCLUSIVE AND CONTINUING JURISDICTION UNDER THE UCCJEA
Once UCCJEA jurisdiction under one of the four above-described tests attaches
to an initial custody/visitation or modifying custody/visitation proceeding,
it has exclusive and continuing jurisdiction to hear all subsequent matters
relating to custody/visitation. This is so until
either (a) the court determines that neither the child, nor the child and one
parent, nor the child and a person acting as a parent have a
significant connection with this state and that
substantial evidence regarding the child's care, protection, training and personal relationships
is no longer available in this state
Fam.C. § 3422(a)(1), or (b) a court determines that the child, child's parents
and any person acting as parent
do not presently reside in the state to which UCCJEA jurisdiction previously attached Fam.C. §
In other words, once UCCJEA jurisdiction attaches in one forum state, no
other forum state's courts can modify the original rendering court's
order until either (a) the child
and both parents move away from the rendering court's state, or (b) there is
both a lack of significant connection
and lack of substantial evidence in the rendering state (and other requirement,
discussed below, are met).
Fam.C. § 3422(a). Therefore, even if the child and custodial parent have moved away from
the original rendering state, a "significant connection" to
the rendering state continues for so long as the other parent, who is
exercising visitation rights, still lives in the rendering state and his
or her relationship with the child "has not deteriorated to the point
at which the exercise of jurisdiction would be unreasonable."
Grahm v. Super.Ct. (Zohar) (2005) 132 CA4th 1193, 1196, 1200, 34 CR3d 270, 272, 275 & fn. 3.
Moreover, it is the original rendering court's sole prerogative to
determine whether there is a lack of substantial evidence/significant
Fam. C. § 3422(a)(1) such that UCCJEA jurisdiction is lost in the originally rendering court's state.
Marriage of Nurie (2009) 176 CA4th 478, 510, 98 CR3d 200, 227. Similarly, there must be a
judicial determination, made while all the parties are non-residents of the rendering court's
state, that all parties no longer reside in the rendering state to divest
its courts of continuing exclusive UCCJEA jurisdiction per
Fam. C. § 3422(a)(2). The parties' departure from the rendering state cannot, itself, terminate
the rendering court's exclusive, continuing jurisdiction.
Marriage of Nurie, supra, 176 CA4th at 500, 98 CR3d at 220.
- MODIFICATION OF UCCJEA JURISDICTION
Where a party attempts to invoke a non-rendering state's custody jurisdiction
and there is an
existing custody order from a rendering state, the first issue is whether the rendering state's
court order is
enforceable (i.e., whether it is in "substantial compliance with" one of
the four UCCJEA tests). If so, the order must be recognized and enforced.
Fam.C. §§ 3443(a), 3453. If the rendering state's order
is enforceable, then deference is given to that order. Except for emergency
UCCJEA jurisdiction, a non-rendering state's court cannot modify another
state's court's custody determination
unless (a) the non-rendering state's court has jurisdiction to make an initial
child custody determination under "home state" or "significant
and (b) either (1) the rendering state court determines it no longer has exclusive,
continuing jurisdiction or the non-rendering state would be a "more
convenient forum" per Fam.C. § 3427;
or (2) a non-rendering court or the court of the rendering state determines
that the child, child's parents and any person acting as parent do
not reside in the other state. Fam.C. § 3423(a) & (b).
Similarly in the situation of
where a custody proceeding is begun in one state but no actual custody
order has been issued, except where UCCJEA emergency jurisdiction is authorized, a state's
court may not exercise UCCJEA jurisdiction if, at the time the proceeding
in that state is commenced, a custody proceeding has been commenced in
a court of another state having jurisdiction "substantially in conformity
with" one of the four UCCJEA jurisdictional tests
unless the second state's court's proceeding has been terminated or stayed
on the ground that the former state's court is a "more convenient"
forum pursuant to
Fam.C. § 3427. Fam.C. § 3426(a).
- DECLINING UCCJEA JURISDICTION
A court having UCCJEA jurisdiction may
decline to exercise its jurisdiction for one of two reasons: because either (a) the court
is an "inconvenient forum" and another court is a "more
(Fam.C. § 3427), or (b) a party engage in "unjustifiable conduct". Fam.C. § 3428.
Resolution of a UCCJEA
inconvenient forum dispute is within the proper UCCJEA court's (i.e. the state's
court where one of the four tests is satisfied, taking into account the
various test's priority) discretion, and may be raised by motion of
a party, on the court's own motion, or upon request of another court.
Fam.C. § 3427(a). The
relevant factors the potentially declining court must assess are found in Fam. C. §
3427(b)(1) to (8):
- Whether domestic violence has occurred and is likely to occur in the future
and which state could best protect the parties and child;
- The length of time the child has resided out of state;
- The distance between the potentially declining court and the court in the
state that would assume jurisdiction;
- The degree of financial hardship to the parties in litigating in one forum
over the other
- Any agreement between the parties as to which state should assume jurisdiction;
- The nature and location of the evidence required to resolve the litigation,
including the child's testimony;
- The ability of the court of each state to expeditiously decide the issue
and the procedures necessary to present the evidence; and
- Each court's familiarity with the facts and issues in the pending litigation.
Of these factors, the
location of the evidence as to the child's best interests for the custody/visitation determination
is given the greatest weight.
Pieri v. Super.Ct. (Pieri) (1991) 1 CA4th 114, 120–121, 1 CR2d 742, 745–746.
Resolution of a UCCJEA
unjustifiable conduct dispute, unlike inconvenient forum, is not discretionary and based on
a weighing of factors, but rather declined jurisdiction is
mandatory (except for UCCJEA emergency jurisdiction cases) upon a showing in a
full evidentiary hearing and a
finding of unjustifiable conduct
unless (a) the parents and all persons acting as parents have acquiesced in the
exercise of the potentially declining court's UCCJEA jurisdiction,
(b) the potentially declining court otherwise having UCCJEA jurisdiction
under one of the four UCCJEA tests (determined, again, in light of their
respective priority) determines that it is a "more appropriate forum" under
Fam. C. § 3427,
or (c) no court of any other state would have UCCJEA jurisdiction under one
of the four UCCJEA tests (in light of their priority). Fam. C. §
3428(a) (1) to (3).
The unjustifiable conduct grounds for declined UCCJEA jurisdiction is primarily
designed to prevent a parent from wrongfully taking a child across state
lines in order to create UCCJEA jurisdiction in a state of their choice.
Marriage of Nurie (2009) 176 CA4th 478, 511–512, 98 CR3d 200, 229. Escaping bona fides
domestic violence in a proper UCCJEA jurisdiction state is not unjustifiable conduct.
- FINAL THOUGHTS
If you are stuck in a pending divorce or other kind of case involving child
custody and visitation issues where a recent interstate move has occurred,
it is very important that you and your attorney understand the UCCJEA.
If you do not have an attorney in the context of one of these kinds of
cases, get one. The same even holds true in the post-judgment context
regarding cases that have long since settled or otherwise have been disposed of.
Using the UCCJEA to its maximum potential can give you (or the opposition)
a tremendous strategic advantage. One of the most important points to
take from this blog is DON'T DELAY IN FILING AN ACTION if you are
a non-moving party; you may lose the right to have your case heard in
the state court that, in the end, will cost you the least amount of money.
Conversely, if you are the moving party, it would likely be to your advantage
to delay filing until the child has been present in the moved-to state
for six months. Interstate UCCJEA jurisdictional battles can be particularly
expensive because both parties usually need attorneys in two different
jurisdictions who will need to coordinate their actions and will be appearing
in two different courtrooms over basically the same case.
One area of particular concern is the domestic violence context and emergency
UCCJEA jurisdiction. Unfortunately, the reality of family law litigation
is that some pro per litigants and unscrupulous attorneys will use domestic
violence allegations as a tactical advantage to get around the normal
processes of custody and visitation determinations. Built into California's
family code is a rebuttable presumption of detriment to the child if a
domestic violence perpetrator is given any share of the child's custody,
such that the consequences of an adverse DVRO action are very severe.
As stated above, under the former UCCJA the party claiming domestic violence
had a high burden to show such act(s) really did occur. Now, under the
UCCJEA the grounds are lowered: the party claiming domestic violence need
only show that the events might have occurred. I have had the experience
of litigating several cases where my unfortunate clients had the child's
other parent take the child all the way across the country to file false
allegations to support a restraining order. It becomes nearly impossible
to marshal evidence, particularly live testimony from percipient third-party
witnesses, with the limitations of an attorney's subpoena power in
terms of geographical scope. Moreover, the court processes of making the
proper UCCJEA jurisdiction for long-term custody/visitation orders take
a very long time to unfold. From the court's perspective the position
is tenable because, philosophically, judges would rather err on the side
of caution rather than risk having an injured parent on the cover of tomorrow's
newspaper. The bottom line is that you don't want to be on the expensive
business end of an out-of-state domestic violence case and an in-state
custody/visitation case. Act quickly and get an attorney to draw up, file,
and have served the appropriate papers if your relationship is going south.
Michael C. Peterson, Esq.
Law Firm of Thurman W. Arnold III, C.F.L.S.