Interstate Custody Disputes
In a mobile society with a high rate of divorce, courts in different States (and countries) often become involved in child-custody and visitation disputes concerning the same child. When families are intact, children generally live in one or more States with both parents. After a family breakup, one parent may move with a child to another State, often to pursue a job opportunity or a new relationship or to return to extended family. The other parent may remain in the original State or move to another State. Additional moves may occur over time, possibly to different States, back to the family’s original State, or out of the country. Interstate and international moves involving children raise challenging legal questions as to which State (or country) has and should exercise jurisdiction to make an initial child-custody determination or modify an existing custody order. Questions also arise as to whether a custody determination made in one State (or country) is enforceable in another State and, if so, what procedures are available to secure enforcement
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a Uniform Act drafted by the National Conference of Commissioners on Uniform State Laws in 1997. The UCCJEA has since been adopted by 49 U.S. States, the District of Columbia, Guam, and the U.S. Virgin Islands. The Act became effective in Vermont on 7/1/2011. As of January 22, 2016, the only state that has not adopted the UCCJEA is Massachusetts. Puerto Rico has also not adopted the Act.
The UCCJEA vests “exclusive [and] continuing jurisdiction” for child custody litigation in the courts of the child’s “home state,” which is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding (or since birth for children younger than six months). If the child has not lived in any state for at least six months, then a court in a state that has (1) “significant connections” with the child and at least one parent and (2) “substantial evidence concerning the child’s care, protection, training, and personal relationships” may assume child-custody jurisdiction. If more than one state has “significant connections” and “substantial evidence…”, the courts of those states must communicate and determine which state has the most significant connections to the child. A court which has made a child-custody determination consistent with UCCJEA has exclusive, continuing jurisdiction over the determination until either (1) that court determines that neither the child, the child’s parents, nor any person acting as a parent has a significant connection with the State that made the original order and that substantial evidence is no longer available in the State concerning the child’s care, protection, training, and personal relationships, or (2) that court or a court of another State determines that the child, the child’s parents, and any person acting as a parent do not reside in the State that initially made the child custody order.
The UCCJEA replaced a previous Uniform Act, the “Uniform Child Custody Jurisdiction Act”, primarily because the old act was inconsistent with the federal Parental Kidnapping Prevention Act when determining proper jurisdiction for initial custody determinations and because of contradictory interpretations of the PKPA. The UCCJEA corrects these problems. The UCCJEA also added uniform procedures to register and enforce child-custody orders across state lines.
International Child Custody & the Hague Convention
The Hague Convention on the Civil Aspects of Child Abduction (“Convention”), a multilateral treaty ratified by 98 countries as of May 2018, provides an expeditious protocol for the return of a child unilaterally removed by a parent from one member country to another.
Article 3 of the Convention requires signatory countries to promptly return children to the country of their habitual residence when they are wrongfully removed or retained in another country in breach of the custody rights of the left-behind parent. The law of the state or country from which the child was removed determines custody rights; this adds some fluidity as in some countries an unmarried father may have rights upon the birth of the child, while other countries require a declaratory order to bestow custody rights. Even when the court of habitual residence has placed a non-removal clause on the custodial parent, whether this bestows custody rights per the Convention or is simply an assurance of a continuous right to access is subject to debate.