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Jurisdictional challenges result when a child or his divorcing parents have contact with more than one state. Will a custody decision made by one court be enforced in another state? What happens if more than one courts tries to adjudicate a dispute regarding the same child? If one forum finalizes a custody decision, can another state modify it?
The Uniform Child Custody Jurisdiction and Enforcement Act was designed to answer some of these questions. The Uniform Law Commissioners designed the Act in 1968 to discourage interstate kidnapping of children by non-custodial parents. It was not uncommon for parents to remove a child to a neighboring state and request a foreign court to modify an existing custody order to their benefit. The Act limits the state with power to finalize and modify a custody or support order, and provides a legal framework for enforcing these orders. Restricting the number of courts with jurisdiction to hear a case thwarts the problem of conflicting child custody orders.
The only U.S. state to decline to adopt the UCCJEA is Massachusetts.
Then: Custody at the Court’s Discretion
Throughout most of the twentieth century, state courts exercised jurisdiction in child custody cases based on the physical, in-state presence of a child. Because the Supreme Court never required that courts respect custody determinations of sister states, courts modified out-of-state custody orders without restraint. The parent with physical possession of the child would usually benefit, which sometimes led to child abduction and forum shopping (deliberately filing or transferring the case to a more favorable court.) The UCCJEA first addressed these problems with a general aim to avoid jurisdictional competition and conflict with courts in other states in matters of child custody.
Now: A Child’s ‘Home State’
Today, the UCCJEA of 1997 — a fine-tuned version of the Act — has been adopted by 49 of the United States, the Virgin Islands, Guam, and Washington D.C. It operates on two main objectives: to establish jurisdiction over a child custody case in one state and to protect child custody orders from modification in any other state, as long as the original state retains jurisdiction over the child’s case. The incentive for a parent to “kidnap” his child is diminished without the chance to petition a foreign court for a favorable modification of an existing custody order.
The UCCJEA gives exclusive and continuing jurisdiction over child custody cases to the court of the child’s home state, i.e., the state in which the child has lived for at least six consecutive months. The state that originally delivered the custody decree retains jurisdiction, unless it chooses to defer to a new state of residence. The court also retains what is called “exclusive, continuing jurisdiction” in relocation cases, provided that the child remains in the original state. When a court has exclusive, continuing jurisdiction, no other state may modify the custody order. The UCCJEA also authorizes courts to exercise emergency jurisdiction in cases of abuse or abandonment.
When Does a Court Lose Exclusive, Continuing Jurisdiction?
According to the UCCJEA, the state that issued the original order loses its exclusive continuing jurisdiction to modify the order when one of two things happen: (1) the child or his parents no longer live in the state that issued the order, or (2) the state loses its “significant connection” jurisdiction. The initial state loses significant connection jurisdiction when circumstances suggest the child has no “home state”.
Does the UCCJEA Apply to International Cases?
The UCCJEA does apply to international cases. The Act recognizes and enforces decrees of “other nations”, and says that a foreign country is to be treated as if it were a US state in vesting the Act’s jurisdiction. It also requires that prior custody decrees made by foreign courts be recognized and upheld. The only restriction provided by the Act in regard to international cases is that a court need not apply its jurisdictional provisions “if the child custody law of a foreign country violates fundamental principles of human rights.”
For example: Pierre (from France) and Ellen (from New York) marry and have a child in France. They eventually divorce in France, their habitual residence. The French court awards primary custody to Ellen and access rights to Pierre. Ellen (with the court’s permission) moves back to New York with the child. She later seeks to modify Pierre’s visitation rights by bringing suit in a U.S. court. If Ellen brought suit in a state that has adopted the UCCJEA (any but Massachusetts), the court would have to decline jurisdiction in favor of the French court. Therefore, any request for restriction of Pierre’s access rights would necessarily have to be heard in France.
What about Massachusetts?
Today, Massachusetts is the only United States jurisdiction that has yet to adopt the UCCJEA. This might not mean much when it comes to the original issuance of custody and support orders, but it does isolate Massachusetts from the rest of the country — and the world, really — when children move across state borders and parents seeks to modify existing custody orders.
Massachusetts currently relies on the Massachusetts Child Custody Jurisdiction Act (MCCJA), the Massachusetts Uniform Interstate Family Support Act (UIFSA), and the Federal Parental Kidnapping Prevention Act (PKPA). Under these laws, Massachusetts employs similar mechanisms to the UCCJEA. As long as Massachusetts is a child’s home state at the time of filing, Massachusetts can exercise jurisdiction over the child’s case. “Home state” is defined across the board as the state in which the child has lived for six months just prior to filing. Massachusetts can also exercise limited, temporary emergency jurisdiction in cases of child endangerment.
Despite similarities between Massachusetts law and the UCCJEA, things get fuzzy when a child is moved from or to Massachusetts. The UCCJEA permits the initiating court to retain exclusive, continuing jurisdiction over a child’s case ever after he/she has found a new home state. All other courts are prevented from ordering modifications. In Massachusetts, however, the MCCJA automatically surrenders its jurisdiction over custody issues once a child establishes a new home state. The MCCJA specifically bars Massachusetts courts from retaining jurisdiction in these cases. Sometimes, the confusion forces parties to litigate two separate cases in a complex custody dispute, which is emotionally and financially draining, needlessly wasteful, and time consuming. Clients and lawyers alike suffer from Massachusetts’ outlier status.
The jurisdictional conundrums of the interstate child could be solved if Massachusetts conforms to the law as it exists in the rest of the country. Endorsement of the UCCJEA has been on the radar of the Massachusetts State Senate, and currently awaits enactment by the House.