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There
may have been a time when a lawyer taking a custody
case could charge into court waving a banner inscribed
"do it in the best interest of the child"
and little else. If there ever was such a time, that
time has gone, shrouded in the mists. In this, the
21st century, an attorney bringing or defending a
case involving child custody needs a working knowledge
of applicable state and federal law just to get into
court. A case involving child custody has as a threshold
issue whether the court has subject matter jurisdiction,
which is governed by two interacting state and federal
statutes: the Uniform Child Custody Jurisdiction Enforcement
Act, (UCCJEA) codified at Ark. Code Ann. §§
9-19-101 to 9-19-401 (Repl. 2002), and the Parental
Kidnapping Prevention Act, (PKPA), 28 U.S.C. §
1738 A. Both statutes intend to provide a system for
reducing child snatching and multiple conflicting
custody orders, while establishing criteria for and
requiring full faith and credit for appropriate court
orders.
The UCCJEA, promulgated
in 1998 and adopted by Arkansas in 1999, replaces
the UCCJA. The main problem with the UCCJA was that
it allowed concurrent jurisdiction by two different
states; one state could claim jurisdiction as the
home state, while a second state could claim jurisdiction
under significant connections. To eliminate that problem
the UCCJEA prioritizes home state jurisdiction. The
PKPA, adopted by Congress in 1980, requires states
to give full faith and credit to child custody determinations
by other states that were made in compliance with
the standards of the act. In cases where a conflict
arises under state law, the federal law preempts.
1. To what kinds of cases
do the UCCJEA and the PKPA apply?
Child custody and visitation
matters which arise in proceedings for divorce, separation,
protection from domestic violence, neglect, abuse,
dependency, guardianship, paternity and termination
of parental rights are included. Grandparental visitation
rights may also be included.1 The acts
are not applicable to juvenile delinquency, or emancipation
to enter contracts, adoptions, proceedings to authorize
emergency care of a child or orders relating to child
support or other monetary obligations. (ACA §
9-19-102 (3)& (4), § 9-19-103)
Child custody determinations
governed by the Indian Child Welfare Act and those
made by foreign countries are to be recognized and
enforced if made under circumstances substantially
conforming to UCCJEA standards. (ACA §§
9-19-104 and 105)
2. What are the requirements
for a court to assume jurisdiction of a custody
case?
The jurisdictional standards
of the UCCJEA apply to four types of situations: initial
child-custody determinations, continuing jurisdiction,
jurisdiction to modify a prior determination, and
temporary emergency jurisdiction. It's essential to
get complete information about each child and any
other possible court actions in order to analyze what
type of jurisdiction applies and which state's court
can exercise jurisdiction and render a child custody
determination.
Initial child custody determinations. An initial
child custody determination means the first proceeding
in which legal or physical custody or visitation is
at issue concerning a particular child. (ACA §§
9-19-102 (3) and (8)) The main question in deciding
if a court has jurisdiction to make an initial custody
determination is the home state of the child, which
means the state where the child lived with a parent
or a person acting as a parent for at least six consecutive
months immediately before commencement of the proceeding.
If the child is less than six months old, the home
state is the state in which the child lived from birth.
(ACA § 9-19-102(7)) The definition of "home
state" is the same under the PKPA. (28 U.S.C.
1738A(a)(4)) It is significant that the changes from
the repealed UCCJA to the UCCJEA prioritize the home
state in state law as does the federal law. Under
the state law now, a court has jurisdiction to make
an initial child custody determination if that
state is the home state of the child on the date the
proceeding is commenced, or if the child no longer
lives there but it was the home state of the child
within six months before the proceeding commenced
and a parent or person acting as a parent continues
to live in the state. (ACA § 9-19 202(a)(1))2
A temporary absence does not change the home state.
If a child has been snatched, the home state may retain
jurisdiction beyond six months. Other bases of jurisdiction
are secondary to the home state. If there is no home
state, or the home state court declines to exercise
jurisdiction, a court of a state other than the home
state may assume jurisdiction if it qualifies under
"significant connections." (ACA § 9-19-201
(a)(2))
Exclusive continuing jurisdiction. Once a court
makes an initial custody determination consistent
with the Act, that court has exclusive continuing
jurisdiction over the matter until it finds that neither
the child nor at least one parent or person acting
as a parent have a significant connection with the
state and that substantial evidence is no longer available
concerning the child. Alternately, the original court
or the court of another state could find that none
of the parties (the child, neither parent nor any
person acting as a parent) reside in the original
state. If the court which made the child custody determination
no longer has exclusive, continuing jurisdiction,
it may modify that determination only if it has jurisdiction
to make an initial custody determination. (ACA §
9-19-202) However, if a left-behind parent continues
to reside in the state of the initial custody determination,
that state's exclusive jurisdiction continues, no
matter how long the child and the other parent have
been gone.3
Jurisdiction to modify a custody determination.
Except for emergency situations, if a child custody
determination has been made by the court of another
state exercising jurisdiction in substantial conformity
with the UCCJEA, Arkansas courts have a duty to recognize
and enforce that determination, but not to modify
it. (ACA § 9-19-303) A court other than the issuing
court may modify such a determination only if the
issuing court determines that it no longer has exclusive
continuing jurisdiction, or finds that the court of
some other state would be a more convenient forum
as defined, or if the issuing court or another court
finds that all of the parties (the child, the parents
or any person acting as a parent) no longer reside
in the issuing state. To modify another court's determination,
the modifying court must meet the jurisdictional standards
for an initial determination. (ACA § 9-19-203)
Temporary emergency jurisdiction. If a child
is present in the state and has been abandoned or
is in need of protection because that child or a sibling
or parent of the child is subjected to or threatened
with mistreatment or abuse, a court may make an emergency
custody determination. If there is a prior child custody
determination entitled to be enforced under the Act
or a child custody proceeding has been commenced in
a court having initial, continuing or modification
jurisdiction under the Act, the order issued under
emergency jurisdiction must specify a period to allow
obtaining an order from the other state. If a court
is asked to make an emergency order that finds that
a proceeding has been commenced in or a child custody
determination made in a state which has jurisdiction
under the act, it must communicate immediately with
that other court. (ACA § 9-19-204)
3. Can
a court having jurisdiction of one of the four types
decline to exercise
jurisdiction?
Staying
exercise of jurisdiction-the prerequisite of notice
and opportunity to be heard. Before a child custody
determination is made all custody claimants and anyone
having physical custody of the child must have reasonable
notice and opportunity to be heard. (ACA § 9-19-106)
Service of process should be in accord with the law
of the state where the person is served, but may be
by publication. (ACA § 9-19-108) Only those who
have been given notice and opportunity to be heard
are bound by a custody determination. A custody determination
made without first giving notice and an opportunity
to be heard to all those entitled is not enforceable
under the UCCJEA (ACA § 9-19-205) or entitled
to full faith and credit under the PKPA. (28 USC §1738
A(e))
Declining to exercise jurisdiction-inconvenient
forum. The court that has jurisdiction may decline
to exercise jurisdiction on the basis of inconvenient
forum, but before concluding it should decline jurisdiction,
the court must allow the parties to submit information
and must consider factors listed in the act. (ACA
§ 9-19-207) The list has been expanded under
the UCCJEA. The declining court must stay its proceedings
on condition that an action is promptly commenced
and designate the state that is a more convenient
forum. Other conditions may be imposed.
Declining to exercise jurisdiction‹ unjustifiable
conduct. A court may find that a petitioner has
engaged in unjustifiable conduct in order to obtain
the court's jurisdiction.4 A court finding
unjustifiable conduct should decline to exercise jurisdiction
unless the parents and all persons acting as parents
acquiesce in the jurisdiction, or the court of the
state which does have jurisdiction determines that
this is the more appropriate forum, or no other state
would have jurisdiction. If it declines jurisdiction
on the basis of conduct, the court shall assess the
party who committed unjustifiable conduct reasonable
fees, expenses, travel costs, and also fashion a remedy
to ensure the safety of the child and prevent repetition
of the unjustifiable conduct. (ACA § 9-19-208)
4.
What are the obligations of the attorneys and litigants
to notify the court of other
court actions or interested parties when seeking
a child custody order or determination?
In
the first pleading or an attached affidavit, each
party must give information if reasonably ascertainable:
the child's present address, places the child has
lived for the last five years, names and addresses
of persons with whom the child lived in that period;
a statement of whether the party participated in any
other custody or visitation regarding the child, and
if so, the court, case number and date of any child
custody determination proceeding; whether the party
knows of any proceeding that could affect the current
one; whether the party knows of any person not a party
who claims rights of legal or physical custody or
has physical custody, and the names and addresses
of such persons. Note that the information may differ
as to each child if more than one child is involved.
Parties have a continuing duty to inform the court
of any other proceeding that could affect the current
action. (ACA § 9-19-209)
5. Is a court obligated to
determine if a court in another state has entered
an order or may assume jurisdiction to make a child custody determination regarding
the same child?
The UCCJEA places a
significant burden on judges to ascertain that they
are exercising jurisdiction appropriately. The judge
must examine the information that the parties are
required to provide under ACA § 9-19-209 and
may examine the parties under oath to discover matters
pertinent to the court's jurisdiction. If the judge
finds that a proceeding concerning custody of the
child has been commenced in another state, and that
the other court is exercising jurisdiction in substantial
conformity with the UCCJEA, the court must stay its
proceeding and communicate with the other court. Unless
the other proceeding has been terminated or is stayed,
or the other court determines that the court here
is a more appropriate forum, this court may not exercise
jurisdiction. The section on simultaneous proceedings
emphasizes the obligation of communication between
courts and that it is the court which has jurisdiction
in accordance with the act which is to proceed. It
is no longer "first in time". (ACA §§
9-19-206, 209)
6. What is involved in communication
between courts? Do the parties
have any rights to participate?
Courts are required
to communicate if a child custody determination, including
a temporary emergency order, is sought and the court
has information that shows a court of another state
exercising jurisdiction in conformity with the UCCJEA
has commenced a child custody proceeding or made a
child custody determination. (ACA §§ 9-19-204,
206) The court may allow the parties to participate
in the communication, or must give them an opportunity
to present facts and legal arguments before a decision
on jurisdiction is made. Except for matters of schedules
and calendars, etc., a record must be made of the
communication. (ACA § 9-19-110 (d)) The parties
must be promptly informed of the communication, have
access to the record and have a chance for input before
a decision. (ACA § 9-19-110) Courts may also
communicate to request cooperation, such as holding
an evidentiary hearing, ordering an evaluation, or
ordering a party or any person having physical custody
of the child to appear with or without the child.
(ACA § 9-19-112)
7. Does presence or absence
of the child affect the court's jurisdiction
in a pre-decree abduction situation?
Except for temporary
emergency orders, jurisdiction does not turn on the
presence of the child. If the court has jurisdiction,
a left-behind parent should promptly file for custody
to preserve home state jurisdiction. That parent can
then move to dismiss any custody action by the abductor-parent
in another state. Careful compliance with notice requirements
is important so that the child custody determination
will be entitled to registration and enforcement under
the UCCJEA and PKPA.
8. How should a decision
to give Full Faith and Credit to an order of
custody from another state be made and by whom?
Enforcement of foreign
child custody determinations is not a self-help process.
The first step for recognition of an out-of-state
child custody determination is to make a request to
register a certified copy with the appropriate circuit
court, along with a statement under penalty of perjury
that to the best knowledge and belief of the person
seeking registration the order has not been modified.
Unless excepted because of the safety of the child
or a party, the request for registration must also
include the names and addresses of the declarant and
of any parent or person acting as a parent who has
custody or visitation through the order. Notice is
to be served on those persons named to allow them
an opportunity to contest registration of the foreign
order. The notice must inform them that to contest
the validity of the foreign order they must request
a hearing within 20 days after service of the notice,
and that failure to contest the registration will
preclude further contest of the out-of-state determination.
To contest the registration, a person would have to
establish one of the following: 1) that the issuing
court did not have jurisdiction under the UCCJEA,
or 2) that the determination sought to be registered
has been modified, vacated or stayed by a court having
jurisdiction to do so under the Act, or 3) that the
person contesting registration was entitled to notice
under the Act, but that notice meeting the requirements
of ACA § 9-19-108 was not given in the proceedings
which resulted in the order. If no timely request
for a hearing is made, registration of the order is
confirmed as a matter of law, and all persons served
must be so notified.
9.
Must an out-of-state order be a final order to be
recognized?
No. A "child custody
determination means a judgment, decree, or other order
of a court providing for the legal custody, physical
custody, or visitation with respect to a child. The
term includes a permanent, temporary, initial, and
modification order." (ACA § 9-19-102(3))
10. Once an out-of-state
order is registered, what else can a court do
beside giving it Full Faith and Credit?
When an out-of-state
order has been registered, the court may grant any
relief normally available under state law to enforce
the order. The UCCJEA also provides an expedited enforcement
procedure, which provides for a judicial hearing the
next court day after service, and relief including
immediate physical custody of the child, attorney's
fees and help from law enforcement. (ACA § 9-19-308)
Other relief may include issuing a warrant to take
physical custody of the child based on a verified
petition and testimony that the child is likely to
suffer immediate physical harm or to be removed from
the state. The warrant is directed to law enforcement
officials, who must serve the petition, warrant and
order on the respondent immediately after taking the
child into custody. The petition must be heard on
the next judicial day after execution of the warrant.
(ACA § 9-19-311) In an enforcement action, the
prevailing party is entitled to reasonable attorney
and investigative fees, costs, travel and child care
expenses and costs. (ACA § 9-19-312)
This
overview of the statutory scheme should put every
lawyer on notice that custody decrees in every case
must be crafted with a view toward future disputes
that might involve courts of other states.
ENDNOTES
1 Bruner v. Tadlock, 991 S.W.2d
600 (1999). Decided under the definition
in the repealed UCCJA, but the relevant wording is
the same in the
UCCJEA.
2 Arkansas Dept. of Human Services
v. Cox, 349 Ark 205 (2002).
3 Furstenburg v. Furstenburg, 591
N.W.2d 798 (S.D. 1999).
4 The language in this section differs
from the comparable section of
the repealed UCCJA. The Arkansas Supreme Court rejected
a claim of unjustifiable
conduct in Arkansas Dept. of Human
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