Understanding Child Custody Jurisdiction and UCCJEA
Jurisdiction is generally defined as the court’s power over the parties and the subject matter of a controversy allowing it to make decisions regarding the issues of the controversy or case. In child custody cases the court with jurisdiction may need to decide on legal custody, physical custody, and/or visitation with a child arising as a result of the child’s parents separating or divorcing.
Children and parents often relocate to different states, creating a jurisdiction dilemma. For example, a California court has previously made a ruling on physical custody and visitation. A few years later the mother and child, now living in Nevada, would like to have a modification of the custody order. Does California or Nevada have the proper jurisdiction to make this change?
In 1997 the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) was written and adopted by 49 U.S. States, and the District of Columbia. The only state that has not adopted the UCCJEA is Massachusetts. The purpose of the act was to reconcile jurisdictional dilemma’s left after the previous adoption of the Uniform Child Custody Jurisdiction Act (UCCJA), and Parental Kidnapping Prevention Act (PKPA).
Certain factors must exist in order for a court to assert “initial” jurisdiction or “continuing” jurisdiction over a child custody proceeding.
A court may take initial jurisdiction over a child custody proceeding if the state is the child’s “home state.” The UCCJEA has defined “home state” to mean the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately preceding the commencement of a child custody proceeding. If a child is less than six months old, the home state would be the state in which the child lived from birth with a parent or person acting as a parent. The six-month period in both instances may include temporary absences.
A court make take continuing jurisdiction over a child custody matter if one of the following four scenarios is met;
First, if the child has lived in the state for six months immediately preceding the commencement of the custody proceeding or was living in Nevada within six months before the commencement of the proceeding.
Second, If another state cannot establish home state jurisdiction by meeting the criteria specified above; or, another state would have jurisdiction under those criteria but declines to exercise jurisdiction on the grounds that the current state is the more appropriate forum and there is a significant connection between the child and at least one parent in the state.
Third, if a state that has jurisdiction under the two preceding criteria declines to exercise that jurisdiction on the grounds that current State is the more appropriate forum.
In emergency situations, such as when a child has been abandoned in the state; child, a sibling, or parent of the child is subjected to or threatened with mistreatment or abuse, a court in the state may assert temporary, emergency jurisdiction in order to make rulings for the protection and welfare of the child. If there has been no previous child custody determination made by a court having jurisdiction over the child, then this temporary order will remain in effect until a court having regular jurisdiction makes a determination. If a court in another state having jurisdiction has made a prior custody determination, the court shall immediately communicate with the other court in order to resolve the emergency, protect the safety of the parties and the child, and determine a time period for the duration of the temporary order.