The Uniform Child-Custody Jurisdiction and Enforcement Act
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U.S. Department of Justice
Office of Justice Programs
Office of Juvenile Justice and Delinquency Prevention
December 2001
The Uniform Child-Custody
A Message From OJJDP
Jurisdiction and America is a society with a substan-
tial divorce rate. Each year, more
Enforcement Act than 1,000,000 children in the United
States are affected by the divorce of
their parents, and of all children who
are born to married parents this year,
Patricia M. Hoff half are likely to experience a divorce
in their families before they reach
This Bulletin describes the Uniform Child- The Act requires State courts to enforce their 18th birthdays.
Custody Jurisdiction and Enforcement Act valid child-custody and visitation determi-
(the UCCJEA),1 the most recent in a series nations made by sister State courts. It also America is also a highly mobile socie-
of laws designed to deter interstate pa- establishes innovative interstate enforce- ty. On the dissolution of family ties, it
rental kidnapping and promote uniform ment procedures. is not uncommon that a parent, per-
haps even both parents, may move
jurisdiction and enforcement provisions
The UCCJEA is intended as an improve- out of the State in which the family
in interstate child-custody and visitation
ment over the UCCJA. It clarifies UCCJA resided at the time of their separa-
cases. The Office of Juvenile Justice and tion. Thus, it is not surprising that
provisions that have received conflicting
Delinquency Prevention (OJJDP) is pub- courts in different States are becom-
interpretations in courts across the coun-
lishing this Bulletin to provide current in- ing involved in child-custody and visi-
try, codifies practices that have effective-
formation about the UCCJEA to legislators tation disputes concerning the same
ly reduced interstate conflict, conforms
in States considering its adoption and to children.
jurisdictional standards to those of the
parents and practitioners in States that
Federal Parental Kidnapping Prevention The Uniform Child-Custody Jurisdic-
have already adopted the law. The Bulle-
Act (the PKPA)6 to ensure interstate en- tion and Enforcement Act, which is
tin is not an official OJJDP endorsement
forceability of orders, and adds protec- described in this Bulletin, has been
of the Act.
tions for victims of domestic violence who proposed by the National Conference
The UCCJEA is a uniform State law that move out of State for safe haven. of Commissioners on Uniform State
was approved in 1997 by the National Laws. The proposed uniform State
The UCCJEA, however, is not a substan- law is designed to deter interstate
Conference of Commissioners on Uniform
tive custody statute. It does not dictate parental kidnapping and to promote
State Laws (NCCUSL) to replace its 1968
standards for making or modifying child- uniform jurisdiction and enforcement
Uniform Child Custody Jurisdiction Act
custody and visitation decisions; instead, provisions in interstate child-custody
(the UCCJA).2 NCCUSL drafts and propos-
es laws in areas where it believes uniform- it determines which States’ courts have and visitation cases. The Act has
ity is important, but the laws become and should exercise jurisdiction to do so. been enacted by 25 States and the
effective only upon adoption by State leg- A court must have jurisdiction (i.e., the District of Columbia and introduced
islatures. As of July 2001, 26 jurisdictions power and authority to hear and decide a into legislatures in several other
matter) before it can proceed to consider States.
had adopted the UCCJEA,3 and it had been
introduced in 2000–01 in the legislatures the merits of a case. The UCCJEA does not
It is our hope that the information
of 10 others.4 apply to child support cases. provided in this Bulletin will assist
those considering the adoption of
The UCCJEA governs State courts’ juris- this model law in their States.
diction to make and modify “child-custody Legal Background
determinations,” a term that expressly In a mobile society with a high rate of
includes custody and visitation orders.5 divorce, courts in different States (and
countries) often become involved inchild-custody and visitation disputes con- child could choose the forum that would Unresolved problems. Although the
cerning the same child. When families are decide custody, parents had a legal incen- UCCJA was a major improvement over
intact, children generally live in one or tive to abduct children. For example, a pre-1968 law governing jurisdiction in
more States with both parents. After a parent could take a child to a State to child-custody cases, some problems
family breakup, one parent may move with which the child had no previous ties and remained. The law did not eliminate the
a child to another State, often to pursue a a court in that State could exercise juris- possibility of two or more States having
job opportunity or a new relationship or diction and make or modify a custody concurrent jurisdiction (e.g., based on
to return to extended family. The other determination. Abducting parents benefit- home State and significant connection
parent may remain in the original State or ed under this system, but their “seize and jurisdiction), and the statute’s prohibition
move to another State. Additional moves run”11 tactics exacted a heavy toll on chil- against simultaneous proceedings was not
may occur over time, possibly to different dren and the judicial system. Children’s routinely effective in preventing courts
States, back to the family’s original State, lives were disrupted, and judicial re- in different States from exercising juris-
or out of the country. sources were squandered as courts in diction and issuing conflicting custody
numerous States often heard custody orders. In addition, contrary to the restric-
Interstate and international moves involv- cases regarding the same children. tive interpretation of emergency jurisdic-
ing children raise challenging legal ques- tion intended by the drafters, some judges
tions as to which State (or country) has Given the interstate nature of the prob-
used this basis of jurisdiction to provide
and should exercise jurisdiction to make lem, an interstate solution was needed.
permanent relief, rather than to temporar-
an initial child-custody determination or NCCUSL responded in 1968 with the
ily address an urgent problem until the
modify an existing custody order. Ques- UCCJA, which governed the existence
court with regular jurisdiction could act.
tions also arise as to whether a custody and exercise of jurisdiction in initial child-
Jurisdictional conflicts also continued in
determination made in one State (or coun- custody determinations and cases involv-
modification cases. For instance, when a
try) is enforceable in another State and, if ing modification of existing orders. The
child moved from his or her original home
so, what procedures are available to se- law also required States to enforce and
State and established a new home State,
cure enforcement. not modify sister States’ orders. The new
courts in both States frequently asserted
requirements were intended to remove
States and Congress have responded to jurisdiction to modify an existing order.
parents’ legal incentive to abduct children
these issues by enacting laws (i.e., the This overlap often led to conflicting cus-
in search of a friendly forum that would
UCCJA and the PKPA) that regulate courts’ tody orders and uncertainty for children
make an initial custody order or modify
jurisdiction to make and modify custody and parents.
an existing order.
and visitation determinations and that Although the UCCJA obligated courts to
dictate the interstate effect such determi- The UCCJA based jurisdiction on a child’s
enforce and not modify custody orders of
nations are to be given in sister States. close affiliation with a State. Specifically, it
sister States, it did not provide enforce-
Other laws that affect child custody and established four jurisdictional grounds:
ment procedures to carry out this require-
visitation have also been enacted. In fact, ment. Litigants were left to discover local
◆ Home State (reserved for the State in
it was this veritable alphabet soup of enforcement procedures on their own,
which the child has lived for at least 6
laws—the UCCJA, the PKPA, the Violence and such procedures varied considerably
months preceding commencement of
Against Women Act (the VAWA),7 the across the country (e.g., contempt pro-
Hague Convention on the Civil Aspects of the action).
ceedings, motions to enforce, motions to
International Child Abduction (the Hague ◆ Significant connection (exists when a
grant full faith and credit, and habeas
Convention),8 and the International Child State has substantial evidence about a
corpus proceedings). The variety of State
Abduction Remedies Act (the ICARA)9— child as a result of the child’s signifi-
enforcement procedures delayed enforce-
that prompted NCCUSL in 1997 to draft an cant connections to that State).
ment (sometimes to the point of denying
improved child-custody jurisdiction and ◆ Emergency (governs situations such as relief, as in the case of weekend visitation
enforcement statute. To understand the abandonment or abuse that require interference), added costs (due to multi-
new law, it is helpful to examine the legal immediate protective action). state variations and practices), made out-
backdrop against which the UCCJEA was
◆ Vacuum (applies when no other juris- comes unpredictable, and sometimes al-
developed.
dictional basis exists). lowed local courts to modify out-of-State
orders, contrary to the UCCJA’s intent.
The Uniform Child Custody Except in emergency cases, the UCCJA
Jurisdiction Act eliminated a child’s physical presence in a In addition, States passed the UCCJA with
State as grounds for exercising jurisdic- variations in the language. For instance,
Overview. Before 1968, State courts four States omitted section 23, which
tion. As a result, a court could no longer
throughout the United States could exer- extends the principles of the Act to cus-
base jurisdiction solely on a child’s pres-
cise jurisdiction over a child-custody case tody orders made in other countries. The
ence in the State, nor would a child’s
based on a child’s presence in the State. variety undermined the uniform interpre-
absence from the State necessarily de-
Courts also freely modified sister States’ tation and application of the law across
prive the court of jurisdiction. Under the
orders because U.S. Supreme Court rul- the country and created loopholes that
UCCJA’s extended home State rule, a left-
ings had never settled the question of led to the issuance of conflicting custody
behind parent could petition for custody
whether the Full Faith and Credit clause of orders. (These and other problems with
in the child’s home State even after an
the U.S. Constitution applied to custody the UCCJA were documented by the Ob-
abduction. The UCCJA also required
decrees.10 This legal climate fostered child stacles to the Recovery and Return of
States to enforce and not modify valid
abduction and forum shopping: Because Parentally Abducted Children Project,
custody and visitation orders made by
parents with physical possession of a
sister States.
2which was carried out by the American (e.g., one may have home State and anoth- State where they were abused and need
Bar Association Center on Children and er significant connection jurisdiction), the continuing protection in their new loca-
the Law pursuant to a cooperative agree- PKPA gives priority to home State jurisdic- tions, the VAWA provides, among other
ment with OJJDP.12) Although every State tion. This priority is intended to limit jur- things, for interstate enforcement of pro-
eventually enacted the UCCJA, the handful isdiction in initial custody cases to one tection orders. Custody provisions incor-
of States that were slow to do so became State, the child’s home State. The PKPA’s porated into protection orders, however,
magnets for forum-shopping parents. home State priority is designed to prevent are not governed by the VAWA.20 These
a significant connection State from exer- provisions are “custody determinations,”
The Parental Kidnapping cising jurisdiction over a matter when the subject to the PKPA and State law govern-
Prevention Act child who is the subject of the proceeding ing jurisdiction in child-custody cases.
has a “home State.”
To close existing gaps and bring greater Neither the PKPA nor the UCCJA explicitly
uniformity to interstate child-custody Exclusive, continuing jurisdiction. Ex- addresses the key concerns of domestic
practice, Congress in 1980 enacted the clusive, continuing jurisdiction under the violence victims who must litigate child
PKPA, which requires State courts to: PKPA protects an original decree State’s custody interstate. The UCCJEA, however,
jurisdiction to modify its own order. This addresses these concerns with a number
◆ Enforce and not modify (i.e., grant full protection addresses an ambiguity in the of provisions. For instance, it protects
faith and credit to) custody and vis- UCCJA’s modification section that some against disclosure of a victim’s address,
itation determinations made by sister courts have interpreted as allowing a expands emergency jurisdiction to cases
States consistently with the PKPA, child’s new home State to exercise modifi- in which a parent or sibling is at risk, and
unless the original State no longer cation jurisdiction even when the decree requires courts to consider family abuse
has, or has declined to exercise, State (i.e., the child’s former home State) in their “inconvenient forum” analysis.
jurisdiction.13 could still exercise jurisdiction on signifi-
◆ Defer to the “exclusive, continuing The Hague Convention and the ICARA.
cant connection grounds. Under the
jurisdiction” (see below) of the de- The Hague Convention21 and the Federal
PKPA, the original home State has exclu-
cree State as long as that State exer- statute that implements it (the ICARA)22
sive, continuing jurisdiction to modify its
cised jurisdiction consistently with the deal with international wrongful removal
own order to the exclusion of all other
PKPA when it made its determination, and retention of children. The Hague Con-
States, including the child’s new home
has jurisdiction under its own law, and vention establishes administrative and
State—assuming that the original home
remains the residence of the child or judicial mechanisms to expedite the re-
State has jurisdiction under State law
any contestant.14 (“Contestant” is de- turn of children (usually to their country
(e.g., significant connection) and that at
fined as a person, including a parent, of habitual residence) who have been
least one parent or the child continues to
who claims a right to custody or visita- abducted or wrongfully retained and to
live there. Moreover, every State, includ-
tion rights with respect to a child.) facilitate the exercise of visitation across
ing a significant connection State, must
international borders. Under the Hague
◆ Refrain from exercising jurisdiction grant full faith and credit to the home
Convention, children who are wrongfully
while another State is exercising juris- State’s order.
removed from or retained in a contracting
diction over a matter consistently with Unresolved problems. The PKPA did not State (i.e., a country that is party to the
the PKPA.15 solve all of the problems it targeted, part- Convention) are subject to prompt return.
◆ Ensure that the following persons are ly because of some confusion about its The UCCJEA specifically provides for the
provided reasonable notice and oppor- relationship to the UCCJA and the incon- enforcement of Hague Convention return
tunity to be heard: contestants, any sistencies between the two laws and part- orders and authorizes public officials to
parent whose parental rights have not ly because many lawyers and judges ig- locate and secure the return of children
been terminated, and any person who nored the PKPA or were unaware of its in Hague Convention cases. The UCCJEA
has physical custody of the child.16 impact on UCCJA practice. These prob- contains other provisions that clarify
lems and inconsistencies are documented when foreign custody determinations
State courts that exercise jurisdiction con-
in the Obstacles Project Final Report.18 (from Hague and non-Hague countries) are
sistently with the criteria in the PKPA are
entitled to enforcement and when courts
entitled as a matter of Federal law to have
Other Relevant Federal Laws in the United States must defer to the cus-
their custody and visitation orders given
tody jurisdiction of a foreign court.
full faith and credit in sister States. These Some laws enacted after the UCCJA added
courts also have exclusive, continuing a Federal dimension to interstate and in-
jurisdiction to modify their own orders ternational child-custody practices that Rationale Underlying
under circumstances stipulated in the law. was unforeseen by the drafters of the
UCCJA in 1968 (but which was considered
the UCCJEA
The PKPA’s jurisdictional criteria resemble by drafters of the UCCJEA in 1997). In Custody contestants have sometimes
those of the UCCJA, but there are signifi- addition to the PKPA, these Federal laws exploited jurisdictional ambiguities to
cant differences. PKPA jurisdictional provi- include the Full Faith and Credit provi- draw out litigation, secure conflicting cus-
sions are discussed in the sections that sions of the VAWA, enacted in 1994; the tody orders, and delay (or deny) enforce-
follow. Hague Convention, ratified in 1986; and ment of valid custody and visitation or-
Home State priority. The PKPA prioritizes the ICARA, enacted in 1988.19 ders. In these instances, resources that
home State jurisdiction in initial custody could have been used to help children
The VAWA. In recognition of the fact that were instead spent on multistate litigation.
cases.17 Whereas two States may have domestic violence victims often leave the
jurisdiction over a case under the UCCJA
3Eliminating such contentious multistate not be charged with simple kidnapping exercising jurisdiction. Such jurisdic-
litigation of custody is one of the stated under Louisiana law (and thus should not tion continues until the child, his or
purposes23 of the UCCJA, which is intend- be extradited) because he was the lawful her parents, and any person acting as
ed to: custodian of the children pursuant to a the child’s parent move away from the
California custody order that was entitled decree State.28
(1) avoid jurisdictional competition
under the PKPA to full faith and credit in ◆ Authorizes courts to exercise emer-
and conflict with courts of other
Louisiana. The Supreme Court, however, gency jurisdiction in cases involving
states in matters of child custody
held that under the Uniform Criminal Ex- family abuse and limits the relief avail-
which have in the past resulted in
tradition Act, 18 U.S.C. § 3182, the place able in emergency cases to temporary
the shifting of children from state to
for the father to assert his defenses to the custody orders.29
state with harmful effects on their
criminal charge (however meritorious)
well-being . . . [and] (4) discourage ◆ Revamps the rules governing inconven-
was Louisiana, not California.
continuing controversies over child ient forum analysis, requiring courts to
custody in the interest of greater The UCCJEA’s enforcement mechanisms consider specified factors.30
stability of home environment and authorize public officials to assist in expe-
◆ Directs courts to decline jurisdiction
of secure family relationships for dited enforcement proceedings and allow
created by unjustifiable conduct.31
the child. for an abbreviated, court-assisted registra-
tion process. In doing so, these mecha-
Parents bent on “winning” an interstate
nisms should considerably reduce self- Enforcement: Article 3
custody case (or ensuring that the other The UCCJEA also establishes uniform pro-
help recoveries, which can be emotionally
parent “loses”) sometimes employ tactics cedures for interstate enforcement of child-
and physically injurious to children and
that may hurt children in the process. custody and visitation determinations.
legally problematic for parents.
Ironically, some parents lose sight of their
children when fighting for the right to In particular, article 3 of the UCCJEA:
keep them. In a particularly egregious UCCJEA Highlights ◆ Authorizes temporary enforcement of
case,24 for example, after 3 years of litiga-
This section provides a brief overview visitation determinations.32
tion in Indiana that should have resulted
of the UCCJEA’s jurisdiction and enforce- ◆ Creates an interstate registration
in a child’s immediate return to her moth-
ment provisions. The cases to which the process for out-of-State custody
er (pursuant to an Indiana order enforcing
UCCJEA applies and the law’s jurisdic- determinations.33
a Hawaiian order), a juvenile court inter-
tion and enforcement provisions are de-
vened at the last minute and ordered the ◆ Establishes a procedure for speedy
scribed in detail in the next sections of
child detained for a mental examination. interstate enforcement of custody and
this Bulletin.
The father’s attorney had orchestrated a visitation determinations.34
CHINS (Child In Need of Services) pro-
ceeding in juvenile court to prevent the Jurisdiction: Articles 1 and 2 ◆ Authorizes issuance of warrants direct-
child’s return to her mother. The case The UCCJEA is a complete replacement ing law enforcement to pick up children
remains a strong reminder of the need for for the UCCJA. Articles 1 and 2 of the at risk of being removed from the
a custody jurisdiction statute that clearly UCCJEA contain jurisdictional rules that State.35
specifies the proceedings to which it ap- essentially bring the UCCJA into conformi- ◆ Authorizes public officials to assist in
plies, restricts the use of emergency juris- ty with the PKPA. Modeling the UCCJEA’s the civil enforcement of custody deter-
diction, and establishes enforcement pro- jurisdictional standards on the PKPA’s minations and in Hague Convention
cedures that are expeditious, sure, and standards is intended to produce custody cases.36
predictable. The UCCJEA accomplishes determinations that are entitled under
these objectives. Federal law to full faith and credit in sister
States. The UCCJEA also addresses the
Applicability of the
Protracted custody litigation and conflict- practice and interpretation problems de- UCCJEA
ing orders not only undermine a child’s scribed earlier in this Bulletin and brings
sense of stability; they also raise the pos- the law into harmony with the VAWA and Covered Proceedings
sibility of criminal liability for either or the Hague Convention. The UCCJEA applies to a variety of pro-
both of the child’s parents, who may face
ceedings.37 Specifically, courts in UCCJEA
charges in one State when complying with Under articles 1 and 2, the UCCJEA,
States must comply with the statute when
the order of another. California v. Superior among other things:
custody and visitation issues arise in
Court of California, San Bernardino County
◆ Applies to a range of proceedings in proceedings for divorce, separation, ne-
(Smolin et al.),25 exemplifies this predica-
ment. In this case, the U.S. Supreme Court which custody or visitation is at glect, abuse, dependency, guardianship,
refused to block a California father’s extra- issue.26 paternity, termination of parental rights,
◆ Grants priority to home State and protection from domestic violence.
dition to Louisiana, where he was charged
jurisdiction.27 The UCCJEA does not apply to child sup-
with simple kidnapping. The criminal
port proceedings38 or adoption cases.39
charges stemmed from the father’s “self- ◆ Preserves exclusive, continuing juris- Identifying the specific proceedings to
help” recovery of his children from Lou- diction in the decree State if that State which the UCCJEA is applicable clarifies
isiana, where they had moved with their determines that it has a basis for
mother. The father argued that he could
4when courts must conform to the UCCJEA, Jurisdictional commenced) or if it is located in the State
which should minimize the likelihood that that was the child’s home State within 6
more than one State will take jurisdiction Provisions of the months of the proceedings’ commence-
over the same matter. UCCJEA ment and the child’s parent (or a person
There are two requirements under the acting as his or her parent) continues to
Initial and Modification UCCJEA for making or modifying a cus- live in the State even after the child has
Determinations tody determination: (1) the court must been removed. This extended home State
have a basis of jurisdiction under the Act rule allows a left-behind parent to com-
The UCCJEA governs courts’ jurisdiction mence a custody proceeding within 6
to issue permanent, temporary,40 initial, (i.e., subject-matter jurisdiction), and
(2) the parties must be given notice and months of a child’s removal from the
and modification orders. The rules that home State.
govern courts’ jurisdiction to make an ini- opportunity to be heard. Personal jurisdic-
tial custody determination differ from tion over a party or child—based on phys- Example. A 2-year-old child, born and
those governing jurisdiction to modify an ical presence in or minimum contacts with raised in Minnesota, is abducted by his
existing order. The type of custody pro- the State—is not required. Moreover, a mother before either parent has filed for
ceeding determines which rules apply and court that has personal jurisdiction over a custody. The boy and his mother move to
whether a court has the authority to act. party or child cannot adjudicate custody Idaho. The left-behind father may file for
unless it has a basis for exercising juris- an initial custody determination in Min-
diction under the Act.44 nesota (which has home State jurisdiction)
Foreign Custody Orders and
Proceedings The UCCJEA’s jurisdictional provisions within 6 months of the child’s removal.
vary, based on whether a case involves an The child’s absence from Minnesota does
The UCCJEA requires State courts to rec- not deprive the State of jurisdiction. If the
initial custody or visitation determination
ognize and enforce custody determina- mother commences a custody proceeding
or modification of an existing order. This
tions made by foreign courts under factual in Idaho while Minnesota is the child’s
section describes the UCCJEA’s jurisdic-
circumstances that substantially conform home State under the UCCJEA, the father
tional provisions and provides examples
with the UCCJEA’s jurisdictional standards can seek dismissal of the Idaho proceed-
that illustrate the intended effect of many
and to defer to foreign courts as if they ing based on lack of jurisdiction. Assum-
of these provisions. It also describes two
were State courts.41 However, State courts ing the notice requirements of section 108
grounds on which courts may decline to
need not apply the Act (i.e., enforce a for- are met, any order the father obtains in
exercise jurisdiction under the UCCJEA
eign court order or defer to a foreign Minnesota is entitled to enforcement in
and includes examples of each.
court’s jurisdiction) if the child-custody Idaho.
law of the foreign country violates funda-
mental principles of human rights. This Initial Jurisdiction Significant connection jurisdiction.45
language is derived from article 20 of The UCCJEA establishes four bases for When a child has no home State or when
the Hague Convention. According to the initial jurisdiction—home State, significant a home State declines jurisdiction,46 an-
U.S. Department of State’s legal analysis connection, more appropriate forum, and other State court may exercise jurisdic-
of the Convention, the “human rights/ vacuum jurisdiction. It also authorizes tion if the child has sufficient ties to the
fundamental freedoms” defense to return courts to issue temporary relief on emer- State and substantial evidence concerning
may be invoked “on the rare occasion that gency grounds. These jurisdictional bases the child is available in the State. A child
return of a child would utterly shock the are discussed in the sections that follow. need not be physically present in a State
conscience of the court or offend all for the State to exercise significant connec-
notions of due process.”42 Home State jurisdiction. The UCCJEA tion jurisdiction. More than one State may
gives home State jurisdiction priority in have jurisdiction on this basis, but only
initial child-custody proceedings. In doing one State may exercise jurisdiction.47 The
Tribal Court Orders and so, the Act conforms to the PKPA and
Proceedings statute resolves the conflict in favor of the
rejects the UCCJA’s coequal treatment of first-filed proceeding. However, the courts
The UCCJEA does not apply to custody home State and significant connection are required to communicate, and the
proceedings concerning American Indian jurisdiction. Only in cases in which a child court in the State of the first-filed proceed-
children to the extent that such proceed- has no home State or the home State de- ing may defer to the court in the second
ings are governed by the Indian Child clines jurisdiction may another court exer- State following judicial communication.48
Welfare Act, 25 U.S.C. § 1901 et seq.43 Child- cise significant connection jurisdiction.
custody proceedings in State courts that This change is intended to significantly Example. A father and his child go to visit
involve tribal-State jurisdictional disputes reduce the number of situations in which the child’s paternal grandparents in Colo-
are subject to the UCCJEA only if the State more than one State has jurisdiction over rado. The father is reminded of the beauty
has enacted optional sections 104(b) and a child-custody matter. In turn, the inci- of the mountains and decides not to re-
(c) of the UCCJEA, which require State dence of conflicting custody orders being turn to Iowa, where his marriage had
courts to treat tribes as if they were States issued by courts in different States should been faltering and his job prospects have
and tribal court custody proceedings as also decrease. dimmed. The family had been living in
if they were court proceedings of sister Iowa for 4 years. Within 2 months of his
States and to enforce tribal court custody Under the UCCJEA, a court has home State arrival in Colorado, the father files for
orders. jurisdiction if it is located in the child’s custody there on significant connection
home State (as of the date proceedings are grounds. The Colorado court lacks juris-
diction and may not proceed to the merits
5of the case unless Iowa, the child’s home involving frequent overtime, many of the Notice and opportunity to be heard must
State, declines jurisdiction in favor of Col- girl’s weekend visits are spent at the be given54 for a temporary emergency
orado. However, if the mother does not homes of friends in her mother’s neigh- order to be enforceable in other States
commence a custody proceeding in Iowa borhood. Both sets of the child’s grand- pursuant to the UCCJEA and PKPA. At a
within 6 months of the child’s removal, parents live in Maryland. The father plans minimum, both laws require that notice be
Colorado becomes the child’s home State to move to Maryland at the end of the provided to any parent whose parental
and the Colorado court may then exercise school year so the child can go to her rights have not been terminated and to
jurisdiction and decide custody. grandparents after school, and he has a any person with physical custody of the
contract to purchase a house in Maryland child. Temporary custody or visitation
Example. A mother and father are high-
when the school year ends. However, provisions in a protection order that was
tech professionals who have moved fre-
before the move, the father becomes obtained ex parte (i.e., without notice) are
quently during the previous several years
increasingly concerned about the moth- unenforceable in sister States under the
to work for Internet companies. After 4
er’s absence during the child’s visits. He UCCJEA and the PKPA. These provisions,
months in California, the father leaves the
files for custody in Maryland. Based on however, may be enforceable within the
mother and their infant and returns to
these facts, it is conceivable that courts in issuing State if domestic violence laws or
North Carolina, where the family had lived
the District of Columbia (the child’s home other laws so provide.
for 5 months preceding their move to Cal-
State) and West Virginia (a significant con-
ifornia. The infant has been in daycare The duration of a temporary emergency
nection State) might decline jurisdiction in
and has pediatricians and relatives in custody order depends on whether cus-
favor of Maryland, the child’s soon-to-be
both States. The father’s cross-country tody has been or is being litigated else-
home State. A decision to decline jurisdic-
move prompts the couple to assess the where. If there is no prior custody order
tion is discretionary and fact dependent.
viability of their marriage, and they decide that is enforceable under the UCCJEA and
to divorce. However, they cannot agree on Vacuum jurisdiction. Similar to the no proceeding has been commenced in a
custody, and the mother and father simul- UCCJA, the UCCJEA provides that if no court with jurisdiction, the temporary
taneously commence separate custody court has home State, significant connec- emergency custody order becomes a final
proceedings in California and North Car- tion, or more appropriate forum jurisdic- determination (if it so provides) when
olina. The parents have not lived in any tion, an alternate court may fill the vacu- the issuing State becomes the child’s
State long enough for their child to have um and exercise jurisdiction over an home State (i.e., in 6 months). Notice
established a home State. Both California initial custody proceeding.52 This provi- must have been given in accordance with
and North Carolina arguably have signifi- sion would apply to situations in which the UCCJEA. If a previous order exists
cant connection jurisdiction, but under children fail to remain in any State long and/or a custody proceeding has been
the UCCJEA only one of them should exer- enough to form attachments (e.g., home- commenced in a court with jurisdiction,
cise it. If a court learns from the required less children, children of migrant workers the temporary emergency custody order
pleadings49 that a proceeding has been or military personnel, or children sent must specify an adequate period within
commenced in a sister State, the court is from relative to relative for temporary which the person seeking emergency re-
required by the UCCJEA to stay its pro- care). lief may obtain a custody order from the
ceeding and communicate with the other other court. The temporary order remains
court50 to decide which proceeding should Temporary emergency jurisdiction.
in effect until a custody order is obtained
continue. If they cannot agree, the court Under the UCCJEA, courts have tempo-
from the other State (within the specified
with the first-filed case may move forward rary emergency jurisdiction when a child
period) or the specified period expires.
and the other court should dismiss its in the State has been abandoned or when
proceeding. emergency protection is necessary be- Example. Following a fight with her hus-
cause a child—or a sibling or parent of band, a battered wife takes the couple’s
More appropriate forum jurisdiction. the child—has been subjected to or is child from their Texas home to Utah and
Under the UCCJEA, a third basis for initial threatened with mistreatment or abuse.53 seeks refuge at a domestic violence shel-
jurisdiction exists when both the home The UCCJEA narrows the UCCJA’s defini- ter. In Utah, the mother files for custody
State and significant connection State(s) tion of “emergency” by excluding neglect of the child on emergency jurisdiction
decline jurisdiction in favor of another, cases—thus bringing it into conformity grounds. She gives her husband the requi-
more appropriate State on grounds of with the PKPA—while expanding the defi- site notice, but in the interest of safety,
inconvenient forum or unjustifiable nition to cover emergencies that put a asks the court not to disclose her ad-
conduct.51 child’s parent or sibling at risk, such as dress to him.55 The child’s father does not
those covered by the VAWA. respond to the suit. The court in Utah
Example. The parents of a 10-year-old girl
grants the mother temporary custody,
are separated but have not filed for cus- Under the UCCJEA, courts may exercise stipulating that the order will become per-
tody. Pursuant to her parents’ informal emergency jurisdiction and make tempo- manent after 6 months if no proceeding is
agreement, the girl remains with the fa- rary orders even if a proceeding has been commenced in Texas, the child’s home
ther in the District of Columbia, where she commenced in another State. Immediate State. The father, however, commences a
goes to school. She spends the majority of judicial communication is mandatory to custody proceeding in Texas soon after
her time with a housekeeper because her resolve the emergency, protect the safety receiving notice of the Utah action. The
father is frequently out of town on busi- of the parties and the child, and deter- mother receives notice of the proceeding
ness. The child spends one weekend a mine how long a temporary order should via her attorney, and she petitions the
month in West Virginia with her mother. remain in effect. Texas court to decline jurisdiction in favor
Because the mother works a night shift
of Utah on inconvenient forum grounds.
6The two courts communicate. The Texas State and new home State both assert Unjustifiable conduct. Subject to specific
court grants the mother’s motion on find- modification jurisdiction, which is likely exceptions,60 section 208 of the UCCJEA
ing that domestic violence has occurred to result in conflicting custody orders and requires a court to decline jurisdiction if
and is likely to continue and that Utah can confusion as to which order takes prec- such jurisdiction was created by the un-
best protect the mother and child.56 Fol- edence.59 Conflicting orders have also justifiable conduct of the party bringing
lowing a hearing on the merits in the Utah caused many law enforcement officers to the action. Furthermore, the Act requires
court, the temporary Utah order is made refuse help in enforcing an order because the court to assess the wrongdoer neces-
permanent. The mother is granted cus- of uncertainty as to its validity. sary and reasonable expenses61 unless
tody, and the father is granted limited, that party can prove that the assessment
Example. Following proceedings in Kansas
supervised visitation. would be clearly inappropriate. Although
(the child’s home State), the child’s father the statute does not define “unjustifiable
is granted custody. The mother moves to
Modification Jurisdiction conduct,” examples cited in the accompa-
Oklahoma, where the child spends extend- nying comment to section 208 include
The UCCJEA addresses courts’ jurisdic- ed visits over summers and holidays. Two wrongful removal, retention, or conceal-
tion to modify existing child-custody or years later, when the child reaches school ment of a child.
visitation determinations in two comple- age, the mother refuses to return the child
mentary sections: section 202 establishes to Kansas at the end of the summer and Questions may arise as to how this sec-
rules of continuing jurisdiction in the enrolls the child in an elementary school tion of the UCCJEA operates in domestic
decree-granting State, and section 203 in Oklahoma. She also files an action in violence situations. The comment to sec-
governs when another State may modify Oklahoma to modify the Kansas order, tion 208 explains that if a parent flees with
an existing decree. seeking full custody of the child. The fa- a child to escape domestic violence and
ther challenges the Oklahoma court’s ju- in the process violates a joint custody de-
Exclusive, continuing jurisdiction. The
risdiction and moves to dismiss the suit cree, that parent’s case should not auto-
UCCJEA adopted a rule of exclusive, con-
on grounds that Kansas has exclusive, matically be dismissed. Instead, an in-
tinuing jurisdiction similar to that in the
continuing jurisdiction. He also seeks quiry must be made into whether the
PKPA.57 Under the UCCJEA, an original
return of the child pursuant to the Kansas flight was justified under the circum-
decree court that exercised jurisdiction
order. The father prevails based on the stances. The comment goes on to distin-
consistent with the Act has exclusive, con-
UCCJEA and the PKPA. Both statutes guish the case of an abusive parent who
tinuing jurisdiction to modify its decree
require enforcement of valid orders, and seizes a child and flees to another State to
until one of the following occurs:
the validity of the Kansas order was un- establish jurisdiction. In this case, he or
◆ The original decree court loses signifi- contested. Oklahoma could not modify she has engaged in unjustifiable conduct
cant connection jurisdiction. the Kansas order because Kansas had and the new State must decline to exer-
exclusive modification jurisdiction. cise jurisdiction.
◆ The child, the child’s parents, and any
person acting as the child’s parent no Example. Without warning, a father
longer live in the State. Declining Jurisdiction snatches his son from a school bus stop
Only the decree State may determine Under the UCCJEA, a court with initial in Arizona. He takes the child to Oregon
whether it has significant connection ju- jurisdiction; exclusive, continuing juris- and keeps their location hidden from the
risdiction. That is, a sister State’s court diction; or modification jurisdiction may left-behind mother for 10 months. The
may not substitute its judgment on this decline to exercise jurisdiction on two boy’s mother mistakenly believes that she
issue for that of the decree State’s court. grounds: inconvenient forum and unjus- cannot file for custody in Arizona (the
By contrast, either State court may deter- tifiable conduct. child’s home State) because the child is
mine that all parties identified in the no longer physically present there. (Had
Inconvenient forum. Under section 207 of
statute have left the State. she consulted a knowledgeable lawyer,
the UCCJEA, a court may, after taking into
she would have known that the child’s
Jurisdiction to modify determination. account specified factors, determine that
absence from Arizona did not deprive the
If an original decree State has exclusive, another State is better able to decide cus-
home State of jurisdiction as long as a
continuing jurisdiction, no other State tody. These factors include whether do-
custody action was commenced within
may modify the decree State’s custody mestic violence has occurred and, if so,
6 months of the boy’s departure.) The
order—even if the child moves and estab- which State can best protect the parties
father waits 16 months before filing for an
lishes a new home State. (In such a sce- and child; how long the child has lived out
initial custody order in Oregon and gives
nario, the noncustodial parent usually of State; where the evidence is located;
the mother notice of the proceeding. She
remains in the original decree State.) A and which court is most familiar with the
promptly files a motion to dismiss on
court in the child’s new home State (or case.
grounds that the father’s conduct was
any other State) cannot modify the initial Example. In the Kansas-Oklahoma example unjustifiable. The court agrees, and it
decree unless the original decree State described above, the mother could peti- declines jurisdiction, dismisses the peti-
loses exclusive, continuing jurisdiction or tion the Kansas court to decline jurisdic- tion, and orders the father to pay the
declines to exercise it on inconvenient tion on grounds of inconvenient forum. mother’s attorney’s fees and investigative
forum grounds, and then only if the child’s However, the decision would be at the costs. The mother then commences a cus-
new home State has jurisdiction under the court’s discretion, and the fact that the tody action in an Arizona court, which
UCCJEA.58 These requirements are intend- mother wrongfully withheld the child in exercises jurisdiction on significant con-
ed to eliminate the practice under the Oklahoma might weigh heavily in the nection grounds, the home State having
UCCJA in which a child’s original home court’s decision. declined its jurisdiction. The mother can
7then seek enforcement of the Oregon or- The process for registering out-of-State physical harm or abduction, this remedy
der in Arizona, using any of the enforce- custody determinations is straightfor- may be used in concert with a warrant to
ment procedures in the UCCJEA or other ward. A party sends a request for registra- take physical custody of a child (UCCJEA
procedures available in that State. The tion to a court in another State, along with section 311, as discussed below).
UCCJEA and the PKPA require Arizona to copies of the child-custody determination
The UCCJEA’s expedited enforcement sec-
enforce the mother’s order. and other required information. The court
tions provide for an enforcement hearing,
files the order as a foreign judgment and
normally within 24 hours of service (i.e.,
serves notice on the parent (or person
Duty To Enforce Under acting as a parent) who has been awarded
on the next judicial day after service). If
that date is impossible, the hearing must
the UCCJEA custody or visitation in the order. Persons
be held on the first judicial day possible.
The UCCJEA requires State courts to rec- who receive notice have 20 days to re-
In other words, this is a priority proceed-
ognize and enforce child-custody determi- quest a hearing to contest the validity of
ing on the fastest track available.
nations made in substantial conformity the order. If no such request is made, the
with the jurisdictional provisions of the order is confirmed as a matter of law and At the hearing, the respondent has limited
Act or made under factual circumstances may be enforced as if it were a local order. defenses, the availability of which de-
that meet the jurisdictional standards of pends on whether the order has been reg-
If the registration is contested, only three
the Act.62 This basic duty to enforce is the istered. If so, the only available defense is
defenses are available:
same as that in the UCCJA; however, a that the order has since been vacated,
custody order is enforceable under the ◆ That the court making the custody de- stayed, or modified. If the custody order
UCCJEA only if the issuing court exer- termination lacked jurisdiction. has not been registered, the respondent
cised jurisdiction in conformity with the ◆ That the person contesting registra- may assert the three defenses that could
UCCJEA. tion was entitled to but did not receive have been raised in a registration pro-
notice of the underlying custody pro- ceeding: (1) lack of jurisdiction in the is-
In addition to establishing a duty to en- suing court; (2) the underlying custody
force sister States’ custody and visitation ceeding in accordance with the
UCCJEA. order has been vacated, stayed, or modi-
orders, the UCCJEA creates five new inter- fied; and (3) lack of notice.
state enforcement mechanisms. These ◆ That the child-custody determination
mechanisms, each described in this sec- has been vacated, stayed, or modified. At the conclusion of the hearing, unless
tion, supplement any other enforcement the respondent has established a defense,
The UCCJEA’s registration process differs the court must issue an order authorizing
procedures available under State law. from the UCCJA provision requiring clerks the petitioner to take immediate physical
Registration of an out-of-State custody of court to maintain a registry for filing custody of the child. Pursuant to section
determination. The UCCJEA creates a out-of-State decrees. The UCCJA’s registry 312, the court must also order the re-
process for registering out-of-State cus- provision was omitted from the UCCJEA.65 spondent to pay the petitioner’s neces-
tody and visitation orders.63 Parents and Temporary visitation orders. Under the sary and reasonable expenses68 unless the
other parties are not required to register UCCJEA, courts may issue temporary respondent shows that such award would
a custody or visitation determination but orders to enforce visitation schedules in be clearly inappropriate. (If the respond-
may choose to do so for the following other States’ court orders or visitation ent had prevailed, the court would assess
reasons: provisions of out-of-State orders that do the petitioner with costs and expenses be-
◆ Registration puts the courts of a State not contain a specific schedule.66 For in- cause section 312 expressly provides for
on notice of an existing custody deter- stance, courts may order compensatory an award to the “prevailing party.”) The
mination and of the issuing court’s visitation time or give specific meaning return order may also include a directive
exclusive, continuing jurisdiction. to another State’s award of “reasonable for law enforcement assistance.
visitation.”
◆ Registration is a pretest of enforceabili- Warrants to take physical custody of a
ty; that is, it can be used to obtain as- Although this section gives judges the child. The UCCJEA also includes a proce-
surance that the custody determination authority to issue temporary orders to dure to ensure a child’s safety and pres-
will be enforced in the future.64 facilitate visitation that might not other- ence in the jurisdiction when notice of an
wise occur, it does not confer modification enforcement proceeding might cause the
◆ Registration limits possible defenses to
jurisdiction to make wholesale changes recipient to harm or flee with the child.69
enforcement at a later date, which sim- On a finding that a “child is imminently
plifies and expedites subsequent en- to sister States’ orders. Consistent with
the UCCJEA and the PKPA, permanent likely to suffer serious physical harm or
forcement efforts. be removed from the State,” section 311
changes to the underlying custody order
◆ Uncontested registration may obviate may be made only by the court with modi- specifically authorizes a court to issue a
the need for lawyers in a case, which fication jurisdiction, unless that State warrant directing law enforcement officers
would be a great benefit to parents declines to exercise jurisdiction. to take immediate physical custody of the
who cannot afford counsel. child.
Expedited enforcement of custody de-
◆ A registered order is enforceable as if terminations. Sections 308–310 of the Warrants to take physical custody of a
it were a local order as of the date of UCCJEA create a new enforcement reme- child (also known as “pickup” orders) are
registration. dy, the object of which is the immediate obtained under the UCCJEA in conjunc-
recovery of a child.67 It is fast and summa- tion with an enforcement action. The peti-
ry in nature. If there is a risk of serious tioner files a verified application to obtain
a warrant to take physical custody of the
8child upon filing an enforcement action. civil proceeding—to locate a child, facili- interference cases. This network
The court must take testimony from the tate a child’s return, or enforce a child- should result in faster resolution of
petitioner or another witness. The testi- custody determination. Any actions taken many interstate custody and visitation
mony may be taken by phone, in person, by the prosecutor are done on behalf of disputes, thereby sparing children the
or by any other means allowed under the court. The prosecutor does not repre- trauma of protracted custody litigation,
local law. If the court finds that the child sent any party. reducing litigation costs for parents,
is imminently likely to suffer serious and limiting more costly prosecutions
physical harm or be removed from the The prosecutor may act if one of the fol-
by allowing prosecutors to pursue civil
State, the court may issue a warrant to lowing exists:
remedies.
take physical custody of the child. The ◆ A prior custody determination. ◆ Give prosecutors the authority to assist
warrant must direct law enforcement offi- with civil enforcement, thereby provid-
◆ A request from a court in a pending
cers to pick up the child immediately, and ing custodial parents of limited finan-
child-custody proceeding.
it must provide for the child’s placement cial ability lawful means by which to
pending the enforcement hearing. The ◆ A reasonable belief that a criminal
secure return of their children.
respondent must be served with the peti- statute has been violated.
tion, warrant, and order immediately after ◆ Involve public authorities in handling
◆ A reasonable belief that a child has
the warrant is executed (i.e., after the international child-custody and visita-
been wrongfully removed or retained
child is picked up), and the enforcement tion disputes under the Hague Conven-
in violation of the Hague Convention.
petition must be heard on the next judicial tion. Their involvement should improve
day unless that date is impossible. Under section 315, prosecutors may re- the United States’ standing with treaty
quest the assistance of law enforcement partners—many of whom now provide
This remedy may be especially helpful in officers, and section 316 expressly author- free legal assistance to U.S. citizens
preventing international abductions. The izes them to respond to such a request.71 seeking return of their children from
ICARA contemplates that courts hearing Under section 317, prosecutors and law abroad—and may foster the return of
Hague Convention cases may take meas- enforcement agencies may recover their more children who have been abducted
ures under State and Federal law to pro- direct costs and expenses from a non- from this country.
tect the well-being of a child or to prevent prevailing party.
further removal or concealment before ◆ Give the criminal justice community
final disposition of the petition. Section The authority granted under these sec- the option of using civil remedies in
311 of the UCCJEA provides the authority tions is discretionary, meaning that prose- interstate and international custody
to do so. cutors may elect to use their new civil and abduction cases, while leaving the
authority to resolve custody and visitation door open to prosecute the abducting
Public enforcement provisions. Sections interference cases but are not required to parent when circumstances warrant.
315–317 of the UCCJEA provide a mecha- do so. For example, a prosecutor may opt This leeway should facilitate resolution
nism for enforcing custody and visitation for civil remedies under the UCCJEA when of these difficult cases in the best inter-
orders70 that is modeled on a system that this approach would best serve the child ests of children and society.
has functioned remarkably well in Cal- and family. Compared with criminal pro-
ifornia for more than 20 years with wide ceedings, civil proceedings tend to be less
support from the criminal justice commu- traumatic for children. In all cases, prose-
Conclusion
nity. (See “The Role of Prosecutors and cutors may choose, under State criminal This Bulletin has highlighted the many
Law Enforcement in Civil Custody Enforce- law, to prosecute the perpetrator-parent if ways in which nationwide enactment of
ment: California’s Experience,” page 10.) prosecution is in the interest of justice. the UCCJEA would improve interstate
Civil and criminal remedies may be pur- child-custody practice. To recap a few, the
State legislatures may designate any pub- UCCJEA adopts the PKPA’s priority for
sued simultaneously in some circum-
lic officials they deem appropriate to im- home State jurisdiction in initial custody
stances. In short, the UCCJEA adds civil
plement sections 315 and 316. Although cases and codifies the principle of exclu-
remedies to the tools prosecutors already
most States will select prosecutors and sive, continuing jurisdiction. These pro-
have under criminal statutes but allows
law enforcement, legislatures may desig- visions will clarify where child-custody
prosecutors to choose how to proceed in
nate other public officials, such as a proceedings should be brought and sub-
parental kidnapping cases.
“Friend of the Court.” California’s experi- stantially reduce the number of competing
ence exemplifies the advantages of allow- Sections 315–317 offer potential advan- custody proceedings in sister States. The
ing district attorneys, criminal investiga- tages to prosecutors, children, and par- UCCJEA also includes the following inno-
tors, and other law enforcement officers ents. Specifically, the provisions may: vative enforcement mechanisms: the expe-
to play an active part in civil enforcement dited enforcement procedure, the warrant
of custody determinations. The following ◆ Deter abductions and encourage citi-
zens to respect the terms of court to take physical custody of a child, and
explanation of sections 315–317 assumes the public officials sections of the Act, all
that State legislatures have designated orders.
of which should result in swifter, more
prosecutors and law enforcement officers ◆ Deter self-help recoveries (“reabduc- streamlined, and more predictable inter-
to exercise the new discretionary powers. tions”), which can be harmful to state enforcement of custody and visita-
children and may have civil or criminal tion orders. The UCCJEA’s new interstate
Section 315(a) of the UCCJEA gives prose-
consequences for parents. jurisdictional rules and procedures reflect
cutors statutory authority to take any law-
ful action—including instituting a proceed- ◆ Create an interstate network of recipro- sensitivity to the safety needs of parents
ing under article 3 or any other available cal assistance to resolve custodial and children who are the victims of do-
mestic violence.
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