Interstate Custody Disputes: The UCCJEA

By Staff Writer

After a divorce or separation, it is becoming increasingly common for one or both parents to move to a different state. As any parent who has been through a break-up is well-aware, a divorce or move to a different state does not cut the ties with the other parent. Until your child is emancipated, issues will continue to arise such as where the child will live, how often he or she will see the other parent and how the child will be transported between the parents’ homes. If parents are unable to resolve these issues between themselves, litigation may be necessary. Custody and visitation cases involving parents who live in different states are known as "interstate" disputes. In such situations, confusion often arises as to which state has the authority to hear the case and issue an order of custody or visitation.

In 1997, a law was drafted by the National Conference of Commissioners on Uniform State Laws, to help determine which state should hear a custody or visitation dispute where the parties reside in different states. Known as the Uniform Child Custody Jurisdiction Enforcement Act (the "UCCJEA"), this law does not dictate how interstate custody and visitation cases should be decided. Rather, it provides guidelines for determining which State has "jurisdiction", or the authority to hear the case and issue an Order. The UCCJEA is not effective in every state. In order to be effective, it must be adopted by each State on an individual basis. As of this date, many states have enacted the UCCJEA and many more are in the process of doing so.

The UCCJEA sets forth clear rules for determining jurisdiction in two separate situations: (1) where no prior order of custody or visitation has been issued (an "initial custody determination"), and (2) where a party is seeking to change a Court’s prior order (a "modification proceeding"). For initial custody determinations, the UCCJEA gives priority to the child’s home state. The state where the child resides when the custody proceeding begins or where a parent resides if the child is absent but has lived in the state within the previous six months, is considered the child’s home state. That state has the first right to entertain the custody dispute.

Once a state has made an initial custody determination, only that state will have the right to modify the order so long as a party to the original custody determination remains in that state. This is known as "continuing exclusive jurisdiction". Courts from other states are required to enforce the Order of the home state and must, except for in very limited situations, allow the home state to entertain any subsequent modification proceedings.

While other states must defer to the home state for purposes of modifying the initial custody order, they may have the right to issue an emergency temporary order. The UCCJEA allows other states to enter such orders if the children are in the state and have been abandoned or if the child is subjected to or threatened with mistreatment or abuse. Abuse is specifically defined to include, not just the abuse of the child, but also the abuse of a parent. If a court exercises emergency jurisdiction, and is aware of a simultaneous custody proceeding in another state or of an existing custody determination, the court must immediately communicate with the Court that issued the initial order.

The UCCJEA also provides a process to swiftly enforce child custody and visitation orders. This is particularly important in cases where visitation has been denied and a parent needs to move quickly to enforce his or her custodial rights. After an enforcement petition is filed, an order will be issued directing the other party to appear with or without the child If possible a hearing will be held on the next day after the order has been served. If the Court is concerned that the parent with physical custody will flee with or harm the child, the Court can issue a warrant to take possession of the child

If you are facing an interstate custody or visitation dispute, you should check with a local attorney to determine if the UCCJEA has been enacted in your state. If it has, much of the confusion over where to initiate the proceeding can be eliminated.