NBI Seminar: UCCJEA: Uniform Child Custody and Enforcement Act
As I have posted recently (see here), I had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here). The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics. I was joined by four other capable attorneys who each had their own topics to present.
Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.
Copied below are the materials I wrote for the section entitled “UCCJEA: Uniform Child Custody and Enforcement Act.”
Parents and children are more mobile than ever. It is not uncommon for parents and children to live and move to various states over the course of the life of a custody order. The Uniform Child Custody Jurisdiction and Enforcement Act (23 Pa.C.S.A. §5401 et seq.) was adopted as a way to address and deal with the various pitfalls can afflict a custody case. The UCCJEA is now the law in 49 states, Washington D.C., and various territories (Massachusetts is the only hold out).
The UCCJEA is divided into four basic parts. The first part consists of the general provisions (e.g.: definitions). The second part deals with jurisdiction. Part three regards enforcing out-of-state custody orders. Finally, the fourth part contains miscellaneous provisions.
The purpose of UCCJEA is, in large part, to determine the proper forum for almost any custody matter between two states (or, even, a state and another country) and to ensure only one state can actually have jurisdiction.
Jurisdiction attaches to the state that is determined to be the “home state” of the child(ren) at issue. The “home state” is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the case (if the child is less than six months old, then the state the child has lived in since birth). If the child has not lived in a state for six months, then the home state will be the state which has “significant connections” with the child and at least one parent or, absent that, “substantial evidence concerning the child’s care, protection, training, and personal relationships.” Mere physical presence, however, is not required or sufficient to make a custody determination. Standard notice requirements apply to cases under UCCJEA. If there is another action already pending in another jurisdiction when the Pennsylvania action is initiated, then Pennsylvania may not exercise jurisdiction over the matter unless the other action is terminated or stayed. A basic principle one can take from the UCCJEA is that a non-“home state” must defer to a “home state.”
Of course, if more than one state has significant connections and substantial evidence, then the courts in the two potential state jurisdictions are to communicate with one another to determine which state has the most significant connections to the child. When the courts interact with one another, the parties have a right to submit arguments and facts to the courts regarding their preference of jurisdiction and, at the courts’ discretion, the parties may also participate in their communication. A record of this communication, regardless of the participation of the parties, must be created and kept. As part of the cooperation between the two states, a Pennsylvania court is empowered to request assistance from another state to hold hearings, order the production of evidence, order an evaluation, copies of transcripts, and/or the appearance of a party.
A Pennsylvania court may decline to exercise jurisdiction if it is determined that it is an inconvenient forum. In order to determine whether it is an inconvenient forum, the court must first consider whether a court from another state would be more appropriate according to the following factors (as quoted from 23 Pa.C.S.A. §5427(b):
(1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) the length of time the child has resided outside this Commonwealth;
(3) the distance between the court in this Commonwealth and the court in the state that would assume jurisdiction;
(4) the relative financial circumstances of the parties;
(5) any agreement of the parties as to which state should assume jurisdiction;
(6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) the familiarity of the court of each state with the facts and issues in the pending litigation.
If it is found that jurisdiction was assumed by Pennsylvania due to the unjustifiable conduct of a party, then the court has authority to revoke jurisdiction and assess the party which engaged in unjustifiable conduct, expenses, costs, attorneys’ fees, and the like.
Once jurisdiction is established, that state has exclusive and continuing jurisdiction until circumstances change. The first way circumstances change is if (1) the child and a parent no longer have significant connection with the state and evidence to make a custody determination is not available in that state or (2) a state court determines that neither the child nor either parent reside in the state any longer.
An example of #1 could be as follows: the parents and children live in Pennsylvania for a period in excess of six months. Unfortunately, the parents divorce and a custody order is entered in Pennsylvania. Eventually the mother and children move to Delaware. The father remains in Pennsylvania. The children maintain a significant connection with Pennsylvania through regular and frequent visits with father there. At some point, father seeks to modify the custody order and files a petition to modify in the same jurisdiction as the original order (i.e.: Pennsylvania). In response, the mother attempts to transfer jurisdiction of the case to Delaware. The UCCJEA, which is designed in part to prevent forum shopping, would serve to prevent the transfer sought by mother by its protection of an issuing court’s jurisdiction unless no parent resides in that state.
An example of #2 could be as follows: the parents and children live in Pennsylvania for a period in excess of six months. Unfortunately, the parents’ divorce and a custody order is entered in Pennsylvania. Eventually the mother and children move to Delaware while the father moves to New Jersey. As no parent lives in Pennsylvania, it no longer has exclusive or continuing jurisdiction to modify its own custody order. Instead, the state where the children reside with at least one parent would likely have jurisdiction.
Once a custody order is entered pursuant to the UCCJEA, a Pennsylvania court is empowered to enforce it and the UCCJEA provides procedures to register a foreign order in Pennsylvania (see 23 Pa.C.S.A. §5445 et seq) . Of course, the other party has a right to contest the validity of the order that someone tries to register in Pennsylvania, and has twenty days to file a petition contesting after being served notice. Once registered in Pennsylvania, the courts of Pennsylvania can enforce it as they enforce any other custody order. The UCCJEA allows for expedited enforcement of a custody determination (23 Pa.C.S.A. §5448) upon petition by one of the parties. The petition requires representations as to jurisdiction. A hearing is ordered as soon as possible (“the next judicial day after service of the order unless that date is impossible.”) A successful petition may result in attorneys’ fees, expenses, and costs to be assessed the opposing party. Finally, pursuant to 23 Pa.C.S.A. §5451, a party may petition for the issuance of a warrant to take custody if there is immediate danger to the child or immediate risk of removal to another jurisdiction. If granted, such a petition empowers law enforcement authorities to seize the child for the petitioner from the other party. The process to secure a warrant also carries with it the potential for an order of attorneys’ fees, expenses, and costs to be assessed the opposing party.
Of course, a state which does not have jurisdiction may enter a temporary emergency order if the child is in danger and needs immediate protection. Pennsylvania can invoke emergency jurisdiction if a child has been abandoned or needs immediate protection (or the sibling or a parent of the child needs protection). Once the emergency order is entered, the court determines if there is an existing order from another state and, if so, the emergency order must allow time for the parties to return to the state with jurisdiction. The emergency order will remain in effect unless and until the “home state” enters a custody order. If there is already an order in another jurisdiction, or a custody action already started in another jurisdiction, then an emergency order in Pennsylvania must provide the parties a period of time to secure an order from this other state else the emergency order remains in effect. Upon being informed of the other state’s potential jurisdiction over the emergent matter, the Pennsylvania court must communicate with the court of the other potential jurisdiction.