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We live in a mobile society. Parents with a child in common may move from state to state, with or without the child involved in the moves. People with court orders granting custody or access to a child, sometimes including grandparents or siblings who have statutory rights, may not be in the same state as a child. They may need to enforce or modify custodial determinations. The modifiability of custody orders-their very fluidity, until children become of age-necessitates frequent reviews of custody arrangements, often after the parties and/or the child has left the original state that reviewed custody terms. Frequently, the parents and child live in state A, which becomes the issuing state when it grants the original custody order. Then the primary custodial parent and the child move to state B while the nonresidential parent moves to state C. The parent in state C may wish to enforce the custody order if new transportation arrangements are necessitated by both parental moves. A 1997 jurisdiction act bears close scrutiny On the other hand, the parent in state B may wish to modify state A’s order. A failure to understand the complexities of jurisdiction for modification of child custody orders can lead to expensive and sometimes unnecessary litigation. This column will highlight some of the key principles of jurisdiction over child custody determinations, particularly the changes brought about by many states’ adoption of the 1997 Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Historically, because of the modifiability of custody orders and the failure of many states to honor the custody orders of another jurisdiction, unsuccessful litigants would sometimes take children to another state hoping for a more favorable result. In response to this situation, the Uniform Law Commissioners promulgated the original Uniform Child Custody Jurisdiction Act (UCCJA) in 1968. By 1981, every state had adopted it. The act was designed to establish jurisdiction in one court for the entry of a child custody order, and to protect that order from being modified in another state as long as the initial state still had jurisdiction. After the adoption of the UCCJA by the states, Congress enacted the Parental Kidnapping Prevention Act (PKPA). The purpose of this act was to reinforce the duty of state courts to give full faith and credit to custody orders of other states. The PKPA contains jurisdictional requirements similar to those in the UCCJA, with two important differences. While the UCCJA has a bias toward the home state (defined as residence for six months, or place of birth for a child who was less than 6 months old) taking jurisdiction, other states might assume jurisdiction on the other UCCJA grounds (significant connections, emergency or a situation where no state is the home state-the “vacuum jurisdiction” area). The drafters of the PKPA took a different view of the home-state basis for jurisdiction. The PKPA prioritized home-state jurisdiction, giving whatever state was designated as the home state the first opportunity to assert and assume jurisdiction. Second, under the PKPA, once a state has entered a valid order, that state will continue to have exclusive jurisdiction over the child custody order until all parties to the order have left the state. In addition to these differences between the UCCJA and the PKPA, which often lead to conflicts and inconsistent results, neither act addresses a significant issue in child custody litigation: the enforcement of child custody orders (including visitation provisions). There have been provisions in the law of the states to permit interstate enforcement of child support orders since the 1950s. The uniform law commissioners promulgated the Uniform Interstate Family Support Act to provide for even more effective interstate enforcement of child support orders in 1992. Interstate enforcement of child custody orders, however, remained an issue for mobile families. In response to the conflicts between the UCCJA and the PKPA and the absence of effective interstate enforcement remedies, the uniform law commissioners promulgated the new UCCJEA in 1997. It is intended to replace the original UCCJA. It has been adopted in 39 states and the District of Columbia, and has been introduced in six other states. This new legislation has a number of key provisions addressing home-state priority, exclusive continuing jurisdiction, clarification of emergency jurisdiction and its temporary nature, and new enforcement procedures. Home state priority. The new act, the UCCJEA, prioritizes home-state jurisdiction in the same manner as the PKPA. In the new legislation, a state that is not the home state of the child will defer to the home state’s right to make an initial custody determination. A state may assume temporary emergency jurisdiction, but if it is not the home state, that jurisdiction will only continue until there is a custody order and a transfer to a home state or a state with jurisdiction. Exclusive, continuing jurisdiction. The UCCJEA provides for exclusive, continuing jurisdiction once a court has made a custody determination. This exclusive, continuing jurisdiction continues until the child and the parent or parent substitute no longer have a significant connection with the issuing state, or that state no longer has significant evidence affecting the child. The issuing state’s jurisdiction also ends when a court determines that the child, the child’s parents or parent substitute do not reside in the issuing state. In other words, jurisdiction shifts if all of the initial grounds for jurisdiction change. Emergency or temporary jurisdiction. The UCCJEA defines the temporary nature of emergency jurisdiction, and it expands the definition of an emergency to situations where there must be protection for the child, the child’s parent or sibling. Temporary emergency jurisdiction is defined as a situation where the child is physically present in a state and the child has been abandoned or it is necessary in an emergency to protect the child, a sibling or a parent of the child. Temporary emergency jurisdiction only can ripen into continuing jurisdiction if that state becomes the home state, and there is no custody proceeding commenced in another state that would otherwise have UCCJEA jurisdiction. Interstate Enforcement. The most radical change in the UCCJEA from the UCCJA is the inclusion of a uniform procedure for enforcement of custody and access orders. One of the major problems with the UCCJA was the lack of any uniform mechanism to enforce custody determinations. It did little good for a parent who was entitled to have a child at a holiday to have a court order that would take months to enforce when access was denied. Under the old UCCJA, a court enforcement proceeding might occur months after the scheduled and thwarted access. The new law takes the position that if custody or access orders cannot be rapidly enforced, it is tantamount to a denial of custody or access or a prohibited de facto modification of custody. The UCCJEA mandates that a state must enforce a custody or access order from a state that substantially conforms to the UCCJEA. The issuing state will have exclusive, continuing jurisdiction, and the order it issues must now be enforced by other states. A look at three essential enforcement mechanisms There are three essential enforcement mechanisms established in the UCCJEA. One means of obtaining enforcement involves registering the custody or access order made by the issuing state. The registration process requires the agency or court receiving the order to give notice to involved parties and the child. There is a very limited time in which to contest registration, and there are limited defenses: lack of jurisdiction for the issuing court; the order for which registration is sought has been vacated, stayed or modified; or notice had not been properly given to the person entitled to notice before the order issued. If the registered order is confirmed, it is entitled to enforcement by relief available to enforce any child custody order. The UCCJEA also sets up an expedited proceeding for enforcement, referred to as a turbo habeas corpus. Under this process, when a court receives a verified petition, the court directs the respondent to appear for a hearing in person (with or without the child) within three court days. The intent of the expedited provisions is to use the speed of a habeas corpus proceeding without transforming enforcement into a modification forum. A “best interests” defense may not be raised in an expedited proceeding. That “defense” is left for the state which has exclusive, continuing jurisdiction to modify its own order. In expedited proceedings, provisions are made for a warrant to issue if there is imminent danger to a child, if it is likely the child will suffer imminent serious physical harm, or if it appears that the child will be removed from the enforcing jurisdiction. In the third enforcement device, the UCCJEA gives a public official the power to enforce custody or access orders. These officials, with civil and criminal powers at their disposal, locate and return children and enforce custody determinations. The officials do not become involved in the merits of any underlying custody issues; they act on behalf of the state or local government in effectuating an order. Mary Kay Kisthardt is a professor of law at the University of Missouri-Kansas City School of Law. She can be reached via e-mail at [email protected]. Barbara Handschu is a solo practitioner with offices in New York City and Buffalo, N.Y. She can be reached via e-mail at [email protected].

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