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
Pursuant to 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 is commenced. 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 states are 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 was filed, 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 order; see 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 domestic violence." 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 in effect 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 presence therein. 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. § 3422(a)(2).
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 connections per 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 connection" jurisdiction, 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 appropriate" (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.