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U.S. Department of Justice
Office of Justice Programs
Office of Juvenile Justice and Delinquency Prevention
December 2001
A Message From OJJDP
America is a society with a substan- tial divorce rate. Each year, more 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, half are likely to experience a divorce in their families before they reach their 18th birthdays.
America is also a highly mobile socie- ty. On the dissolution of family ties, it is not uncommon that a parent, per- haps even both parents, may move out of the State in which the family resided at the time of their separa- tion. Thus, it is not surprising that courts in different States are becom- ing involved in child-custody and visi- tation disputes concerning the same children.
The Uniform Child-Custody Jurisdic- tion and Enforcement Act, which is described in this Bulletin, has been proposed by the National Conference of Commissioners on Uniform State Laws. The proposed uniform State law is designed to deter interstate parental kidnapping and to promote uniform jurisdiction and enforcement provisions in interstate child-custody and visitation cases. The Act has been enacted by 25 States and the District of Columbia and introduced into legislatures in several other States.
It is our hope that the information provided in this Bulletin will assist those considering the adoption of this model law in their States.
The Act requires State courts to enforce valid child-custody and visitation determi- nations made by sister State courts. It also establishes innovative interstate enforce- ment procedures.
The UCCJEA is intended as an improve- ment over the UCCJA. It clarifies UCCJA provisions that have received conflicting interpretations in courts across the coun- try, codifies practices that have effective- ly reduced interstate conflict, conforms jurisdictional standards to those of the Federal Parental Kidnapping Prevention Act (the PKPA)^6 to ensure interstate en- forceability of orders, and adds protec- tions for victims of domestic violence who move out of State for safe haven.
The UCCJEA, however, is not a substan- tive custody statute. It does not dictate standards for making or modifying child- custody and visitation decisions; instead, it determines which States’ courts have and should exercise jurisdiction to do so. A court must have jurisdiction (i.e., the power and authority to hear and decide a matter) before it can proceed to consider the merits of a case. The UCCJEA does not apply to child support cases.
Legal Background
In a mobile society with a high rate of divorce, courts in different States (and countries) often become involved in
The Uniform Child-Custody
Jurisdiction and
Enforcement Act
Patricia M. Hoff
This Bulletin describes the Uniform Child- Custody Jurisdiction and Enforcement Act (the UCCJEA),^1 the most recent in a series of laws designed to deter interstate pa- rental kidnapping and promote uniform jurisdiction and enforcement provisions in interstate child-custody and visitation cases. The Office of Juvenile Justice and Delinquency Prevention (OJJDP) is pub- lishing this Bulletin to provide current in- formation about the UCCJEA to legislators in States considering its adoption and to parents and practitioners in States that have already adopted the law. The Bulle- tin is not an official OJJDP endorsement of the Act.
The UCCJEA is a uniform State law that was approved in 1997 by the National Conference of Commissioners on Uniform State Laws (NCCUSL) to replace its 1968 Uniform Child Custody Jurisdiction Act (the UCCJA).^2 NCCUSL drafts and propos- es laws in areas where it believes uniform- ity is important, but the laws become effective only upon adoption by State leg- islatures. As of July 2001, 26 jurisdictions had adopted the UCCJEA,^3 and it had been introduced in 2000–01 in the legislatures of 10 others.^4
The UCCJEA governs State courts’ juris- diction to make and modify “child-custody determinations,” a term that expressly includes custody and visitation orders.^5
child could choose the forum that would decide custody, parents had a legal incen- tive to abduct children. For example, a parent could take a child to a State to which the child had no previous ties and a court in that State could exercise juris- diction and make or modify a custody determination. Abducting parents benefit- ed under this system, but their “seize and run”^11 tactics exacted a heavy toll on chil- dren and the judicial system. Children’s lives were disrupted, and judicial re- sources were squandered as courts in numerous States often heard custody cases regarding the same children.
Given the interstate nature of the prob- lem, an interstate solution was needed. NCCUSL responded in 1968 with the UCCJA, which governed the existence and exercise of jurisdiction in initial child- custody determinations and cases involv- ing modification of existing orders. The law also required States to enforce and not modify sister States’ orders. The new requirements were intended to remove parents’ legal incentive to abduct children in search of a friendly forum that would make an initial custody order or modify an existing order.
The UCCJA based jurisdiction on a child’s close affiliation with a State. Specifically, it established four jurisdictional grounds:
u Home State (reserved for the State in which the child has lived for at least 6 months preceding commencement of the action). u Significant connection (exists when a State has substantial evidence about a child as a result of the child’s signifi- cant connections to that State). u Emergency (governs situations such as abandonment or abuse that require immediate protective action). u Vacuum (applies when no other juris- dictional basis exists). Except in emergency cases, the UCCJA eliminated a child’s physical presence in a State as grounds for exercising jurisdic- tion. As a result, a court could no longer base jurisdiction solely on a child’s pres- ence in the State, nor would a child’s absence from the State necessarily de- prive the court of jurisdiction. Under the UCCJA’s extended home State rule, a left- behind parent could petition for custody in the child’s home State even after an abduction. The UCCJA also required States to enforce and not modify valid custody and visitation orders made by sister States.
child-custody and visitation disputes con- cerning 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 involv- ing children raise challenging legal ques- tions as to which State (or country) has and should exercise jurisdiction to make an initial child-custody determination or modify an existing custody order. Ques- tions also arise as to whether a custody determination made in one State (or coun- try) is enforceable in another State and, if so, what procedures are available to se- cure enforcement.
States and Congress have responded to these issues by enacting laws (i.e., the UCCJA and the PKPA) that regulate courts’ jurisdiction to make and modify custody and visitation determinations and that dictate the interstate effect such determi- nations are to be given in sister States. Other laws that affect child custody and visitation have also been enacted. In fact, it was this veritable alphabet soup of laws—the UCCJA, the PKPA, the Violence Against Women Act (the VAWA),^7 the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention),^8 and the International Child Abduction Remedies Act (the ICARA)^9 — that prompted NCCUSL in 1997 to draft an improved child-custody jurisdiction and enforcement statute. To understand the new law, it is helpful to examine the legal backdrop against which the UCCJEA was developed.
The Uniform Child Custody
Jurisdiction Act
Overview. Before 1968, State courts throughout the United States could exer- cise jurisdiction over a child-custody case based on a child’s presence in the State. Courts also freely modified sister States’ orders because U.S. Supreme Court rul- ings had never settled the question of whether the Full Faith and Credit clause of the U.S. Constitution applied to custody decrees.^10 This legal climate fostered child abduction and forum shopping: Because parents with physical possession of a
Unresolved problems. Although the UCCJA was a major improvement over pre-1968 law governing jurisdiction in child-custody cases, some problems remained. The law did not eliminate the possibility of two or more States having concurrent jurisdiction (e.g., based on home State and significant connection jurisdiction), and the statute’s prohibition against simultaneous proceedings was not routinely effective in preventing courts in different States from exercising juris- diction and issuing conflicting custody orders. In addition, contrary to the restric- tive interpretation of emergency jurisdic- tion intended by the drafters, some judges used this basis of jurisdiction to provide permanent relief, rather than to temporar- ily address an urgent problem until the court with regular jurisdiction could act. Jurisdictional conflicts also continued in modification cases. For instance, when a child moved from his or her original home State and established a new home State, courts in both States frequently asserted jurisdiction to modify an existing order. This overlap often led to conflicting cus- tody orders and uncertainty for children and parents.
Although the UCCJA obligated courts to enforce and not modify custody orders of sister States, it did not provide enforce- ment procedures to carry out this require- ment. Litigants were left to discover local enforcement procedures on their own, and such procedures varied considerably across the country (e.g., contempt pro- ceedings, motions to enforce, motions to grant full faith and credit, and habeas corpus proceedings). The variety of State enforcement procedures delayed enforce- ment (sometimes to the point of denying relief, as in the case of weekend visitation interference), added costs (due to multi- state variations and practices), made out- comes unpredictable, and sometimes al- lowed local courts to modify out-of-State orders, contrary to the UCCJA’s intent.
In addition, States passed the UCCJA with variations in the language. For instance, four States omitted section 23, which extends the principles of the Act to cus- tody orders made in other countries. The variety undermined the uniform interpre- tation and application of the law across the country and created loopholes that led to the issuance of conflicting custody orders. (These and other problems with the UCCJA were documented by the Ob- stacles to the Recovery and Return of Parentally Abducted Children Project,
Eliminating such contentious multistate litigation of custody is one of the stated purposes^23 of the UCCJA, which is intend- ed to:
(1) avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being... [and] (4) discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child.
Parents bent on “winning” an interstate custody case (or ensuring that the other parent “loses”) sometimes employ tactics that may hurt children in the process. Ironically, some parents lose sight of their children when fighting for the right to keep them. In a particularly egregious case,^24 for example, after 3 years of litiga- tion in Indiana that should have resulted in a child’s immediate return to her moth- er (pursuant to an Indiana order enforcing a Hawaiian order), a juvenile court inter- vened at the last minute and ordered the child detained for a mental examination. The father’s attorney had orchestrated a CHINS (Child In Need of Services) pro- ceeding in juvenile court to prevent the child’s return to her mother. The case remains a strong reminder of the need for a custody jurisdiction statute that clearly specifies the proceedings to which it ap- plies, restricts the use of emergency juris- diction, and establishes enforcement pro- cedures that are expeditious, sure, and predictable. The UCCJEA accomplishes these objectives.
Protracted custody litigation and conflict- ing orders not only undermine a child’s sense of stability; they also raise the pos- sibility of criminal liability for either or both of the child’s parents, who may face charges in one State when complying with the order of another. California v. Superior Court of California, San Bernardino County ( Smolin et al. ),^25 exemplifies this predica- ment. In this case, the U.S. Supreme Court refused to block a California father’s extra- dition to Louisiana, where he was charged with simple kidnapping. The criminal charges stemmed from the father’s “self- help” recovery of his children from Lou- isiana, where they had moved with their mother. The father argued that he could
not be charged with simple kidnapping under Louisiana law (and thus should not be extradited) because he was the lawful custodian of the children pursuant to a California custody order that was entitled under the PKPA to full faith and credit in Louisiana. The Supreme Court, however, held that under the Uniform Criminal Ex- tradition Act, 18 U.S.C. § 3182, the place for the father to assert his defenses to the criminal charge (however meritorious) was Louisiana, not California.
The UCCJEA’s enforcement mechanisms authorize public officials to assist in expe- dited enforcement proceedings and allow for an abbreviated, court-assisted registra- tion process. In doing so, these mecha- nisms should considerably reduce self- help recoveries, which can be emotionally and physically injurious to children and legally problematic for parents.
UCCJEA Highlights This section provides a brief overview of the UCCJEA’s jurisdiction and enforce- ment provisions. The cases to which the UCCJEA applies and the law’s jurisdic- tion and enforcement provisions are de- scribed in detail in the next sections of this Bulletin.
Jurisdiction: Articles 1 and 2 The UCCJEA is a complete replacement for the UCCJA. Articles 1 and 2 of the UCCJEA contain jurisdictional rules that essentially bring the UCCJA into conformi- ty with the PKPA. Modeling the UCCJEA’s jurisdictional standards on the PKPA’s standards is intended to produce custody determinations that are entitled under Federal law to full faith and credit in sister States. The UCCJEA also addresses the practice and interpretation problems de- scribed earlier in this Bulletin and brings the law into harmony with the VAWA and the Hague Convention.
Under articles 1 and 2, the UCCJEA, among other things:
u Applies to a range of proceedings in which custody or visitation is at issue.^26 u Grants priority to home State jurisdiction.^27 u Preserves exclusive, continuing juris- diction in the decree State if that State determines that it has a basis for
exercising jurisdiction. Such jurisdic- tion continues until the child, his or her parents, and any person acting as the child’s parent move away from the decree State.^28 u Authorizes courts to exercise emer- gency jurisdiction in cases involving family abuse and limits the relief avail- able in emergency cases to temporary custody orders.^29 u Revamps the rules governing inconven- ient forum analysis, requiring courts to consider specified factors.^30 u Directs courts to decline jurisdiction created by unjustifiable conduct.^31
Enforcement: Article 3 The UCCJEA also establishes uniform pro- cedures for interstate enforcement of child- custody and visitation determinations.
In particular, article 3 of the UCCJEA:
u Authorizes temporary enforcement of visitation determinations.^32 u Creates an interstate registration process for out-of-State custody determinations.^33 u Establishes a procedure for speedy interstate enforcement of custody and visitation determinations.^34 u Authorizes issuance of warrants direct- ing law enforcement to pick up children at risk of being removed from the State.^35 u Authorizes public officials to assist in the civil enforcement of custody deter- minations and in Hague Convention cases.^36
Applicability of the UCCJEA
Covered Proceedings The UCCJEA applies to a variety of pro- ceedings.^37 Specifically, courts in UCCJEA States must comply with the statute when custody and visitation issues arise in proceedings for divorce, separation, ne- glect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence. The UCCJEA does not apply to child sup- port proceedings^38 or adoption cases.^39 Identifying the specific proceedings to which the UCCJEA is applicable clarifies
when courts must conform to the UCCJEA, which should minimize the likelihood that more than one State will take jurisdiction over the same matter.
Initial and Modification
Determinations
The UCCJEA governs courts’ jurisdiction to issue permanent, temporary,^40 initial, and modification orders. The rules that govern courts’ jurisdiction to make an ini- tial custody determination differ from those governing jurisdiction to modify an existing order. The type of custody pro- ceeding determines which rules apply and whether a court has the authority to act.
Foreign Custody Orders and Proceedings
The UCCJEA requires State courts to rec- ognize and enforce custody determina- tions made by foreign courts under factual circumstances that substantially conform with the UCCJEA’s jurisdictional standards and to defer to foreign courts as if they were State courts.^41 However, State courts need not apply the Act (i.e., enforce a for- eign court order or defer to a foreign court’s jurisdiction) if the child-custody law of the foreign country violates funda- mental principles of human rights. This language is derived from article 20 of the Hague Convention. According to the U.S. Department of State’s legal analysis of the Convention, the “human rights/ fundamental freedoms” defense to return may be invoked “on the rare occasion that return of a child would utterly shock the conscience of the court or offend all notions of due process.”^42
Tribal Court Orders and
Proceedings
The UCCJEA does not apply to custody proceedings concerning American Indian children to the extent that such proceed- ings are governed by the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq.^43 Child- custody proceedings in State courts that involve tribal-State jurisdictional disputes are subject to the UCCJEA only if the State has enacted optional sections 104(b) and (c) of the UCCJEA, which require State courts to treat tribes as if they were States and tribal court custody proceedings as if they were court proceedings of sister States and to enforce tribal court custody orders.
Jurisdictional Provisions of the UCCJEA There are two requirements under the UCCJEA for making or modifying a cus- tody determination: (1) the court must have a basis of jurisdiction under the Act (i.e., subject-matter jurisdiction), and (2) the parties must be given notice and opportunity to be heard. Personal jurisdic- tion over a party or child—based on phys- ical presence in or minimum contacts with the State—is not required. Moreover, a court that has personal jurisdiction over a party or child cannot adjudicate custody unless it has a basis for exercising juris- diction under the Act.^44
The UCCJEA’s jurisdictional provisions vary, based on whether a case involves an initial custody or visitation determination or modification of an existing order. This section describes the UCCJEA’s jurisdic- tional provisions and provides examples that illustrate the intended effect of many of these provisions. It also describes two grounds on which courts may decline to exercise jurisdiction under the UCCJEA and includes examples of each.
Initial Jurisdiction The UCCJEA establishes four bases for initial jurisdiction—home State, significant connection, more appropriate forum, and vacuum jurisdiction. It also authorizes courts to issue temporary relief on emer- gency grounds. These jurisdictional bases are discussed in the sections that follow.
Home State jurisdiction. The UCCJEA gives home State jurisdiction priority in initial child-custody proceedings. In doing so, the Act conforms to the PKPA and rejects the UCCJA’s coequal treatment of home State and significant connection jurisdiction. Only in cases in which a child has no home State or the home State de- clines jurisdiction may another court exer- cise significant connection jurisdiction. This change is intended to significantly reduce the number of situations in which more than one State has jurisdiction over a child-custody matter. In turn, the inci- dence of conflicting custody orders being issued by courts in different States should also decrease.
Under the UCCJEA, a court has home State jurisdiction if it is located in the child’s home State (as of the date proceedings are
commenced) or if it is located in the State that was the child’s home State within 6 months of the proceedings’ commence- ment and the child’s parent (or a person acting as his or her parent) continues to live in the State even after the child has been removed. This extended home State rule allows a left-behind parent to com- mence a custody proceeding within 6 months of a child’s removal from the home State.
Example. A 2-year-old child, born and raised in Minnesota, is abducted by his mother before either parent has filed for custody. The boy and his mother move to Idaho. The left-behind father may file for an initial custody determination in Min- nesota (which has home State jurisdiction) within 6 months of the child’s removal. The child’s absence from Minnesota does not deprive the State of jurisdiction. If the mother commences a custody proceeding in Idaho while Minnesota is the child’s home State under the UCCJEA, the father can seek dismissal of the Idaho proceed- ing based on lack of jurisdiction. Assum- ing the notice requirements of section 108 are met, any order the father obtains in Minnesota is entitled to enforcement in Idaho.
Significant connection jurisdiction.^45 When a child has no home State or when a home State declines jurisdiction,^46 an- other State court may exercise jurisdic- tion if the child has sufficient ties to the State and substantial evidence concerning the child is available in the State. A child need not be physically present in a State for the State to exercise significant connec- tion jurisdiction. More than one State may have jurisdiction on this basis, but only one State may exercise jurisdiction.^47 The statute resolves the conflict in favor of the first-filed proceeding. However, the courts are required to communicate, and the court in the State of the first-filed proceed- ing may defer to the court in the second State following judicial communication.^48
Example. A father and his child go to visit the child’s paternal grandparents in Colo- rado. The father is reminded of the beauty of the mountains and decides not to re- turn to Iowa, where his marriage had been faltering and his job prospects have dimmed. The family had been living in Iowa for 4 years. Within 2 months of his arrival in Colorado, the father files for custody there on significant connection grounds. The Colorado court lacks juris- diction and may not proceed to the merits
The two courts communicate. The Texas court grants the mother’s motion on find- ing that domestic violence has occurred and is likely to continue and that Utah can best protect the mother and child.^56 Fol- lowing a hearing on the merits in the Utah court, the temporary Utah order is made permanent. The mother is granted cus- tody, and the father is granted limited, supervised visitation.
Modification Jurisdiction
The UCCJEA addresses courts’ jurisdic- tion to modify existing child-custody or visitation determinations in two comple- mentary sections: section 202 establishes rules of continuing jurisdiction in the decree-granting State, and section 203 governs when another State may modify an existing decree.
Exclusive, continuing jurisdiction. The UCCJEA adopted a rule of exclusive, con- tinuing jurisdiction similar to that in the PKPA.^57 Under the UCCJEA, an original decree court that exercised jurisdiction consistent with the Act has exclusive, con- tinuing jurisdiction to modify its decree until one of the following occurs:
u The original decree court loses signifi- cant connection jurisdiction.
u The child, the child’s parents, and any person acting as the child’s parent no longer live in the State.
Only the decree State may determine whether it has significant connection ju- risdiction. That is, a sister State’s court may not substitute its judgment on this issue for that of the decree State’s court. By contrast, either State court may deter- mine that all parties identified in the statute have left the State.
Jurisdiction to modify determination. If an original decree State has exclusive, continuing jurisdiction, no other State may modify the decree State’s custody order—even if the child moves and estab- lishes a new home State. (In such a sce- nario, the noncustodial parent usually remains in the original decree State.) A court in the child’s new home State (or any other State) cannot modify the initial decree unless the original decree State loses exclusive, continuing jurisdiction or declines to exercise it on inconvenient forum grounds, and then only if the child’s new home State has jurisdiction under the UCCJEA.^58 These requirements are intend- ed to eliminate the practice under the UCCJA in which a child’s original home
State and new home State both assert modification jurisdiction, which is likely to result in conflicting custody orders and confusion as to which order takes prec- edence.^59 Conflicting orders have also caused many law enforcement officers to refuse help in enforcing an order because of uncertainty as to its validity.
Example. Following proceedings in Kansas (the child’s home State), the child’s father is granted custody. The mother moves to Oklahoma, where the child spends extend- ed visits over summers and holidays. Two years later, when the child reaches school age, the mother refuses to return the child to Kansas at the end of the summer and enrolls the child in an elementary school in Oklahoma. She also files an action in Oklahoma to modify the Kansas order, seeking full custody of the child. The fa- ther challenges the Oklahoma court’s ju- risdiction and moves to dismiss the suit on grounds that Kansas has exclusive, continuing jurisdiction. He also seeks return of the child pursuant to the Kansas order. The father prevails based on the UCCJEA and the PKPA. Both statutes require enforcement of valid orders, and the validity of the Kansas order was un- contested. Oklahoma could not modify the Kansas order because Kansas had exclusive modification jurisdiction.
Declining Jurisdiction Under the UCCJEA, a court with initial jurisdiction; exclusive, continuing juris- diction; or modification jurisdiction may decline to exercise jurisdiction on two grounds: inconvenient forum and unjus- tifiable conduct.
Inconvenient forum. Under section 207 of the UCCJEA, a court may, after taking into account specified factors, determine that another State is better able to decide cus- tody. These factors include whether do- mestic violence has occurred and, if so, which State can best protect the parties and child; how long the child has lived out of State; where the evidence is located; and which court is most familiar with the case.
Example. In the Kansas-Oklahoma example described above, the mother could peti- tion the Kansas court to decline jurisdic- tion on grounds of inconvenient forum. However, the decision would be at the court’s discretion, and the fact that the mother wrongfully withheld the child in Oklahoma might weigh heavily in the court’s decision.
Unjustifiable conduct. Subject to specific exceptions,^60 section 208 of the UCCJEA requires a court to decline jurisdiction if such jurisdiction was created by the un- justifiable conduct of the party bringing the action. Furthermore, the Act requires the court to assess the wrongdoer neces- sary and reasonable expenses^61 unless that party can prove that the assessment would be clearly inappropriate. Although the statute does not define “unjustifiable conduct,” examples cited in the accompa- nying comment to section 208 include wrongful removal, retention, or conceal- ment of a child.
Questions may arise as to how this sec- tion of the UCCJEA operates in domestic violence situations. The comment to sec- tion 208 explains that if a parent flees with a child to escape domestic violence and in the process violates a joint custody de- cree, that parent’s case should not auto- matically be dismissed. Instead, an in- quiry must be made into whether the flight was justified under the circum- stances. The comment goes on to distin- guish the case of an abusive parent who seizes a child and flees to another State to establish jurisdiction. In this case, he or she has engaged in unjustifiable conduct and the new State must decline to exer- cise jurisdiction.
Example. Without warning, a father snatches his son from a school bus stop in Arizona. He takes the child to Oregon and keeps their location hidden from the left-behind mother for 10 months. The boy’s mother mistakenly believes that she cannot file for custody in Arizona (the child’s home State) because the child is no longer physically present there. (Had she consulted a knowledgeable lawyer, she would have known that the child’s absence from Arizona did not deprive the home State of jurisdiction as long as a custody action was commenced within 6 months of the boy’s departure.) The father waits 16 months before filing for an initial custody order in Oregon and gives the mother notice of the proceeding. She promptly files a motion to dismiss on grounds that the father’s conduct was unjustifiable. The court agrees, and it declines jurisdiction, dismisses the peti- tion, and orders the father to pay the mother’s attorney’s fees and investigative costs. The mother then commences a cus- tody action in an Arizona court, which exercises jurisdiction on significant con- nection grounds, the home State having declined its jurisdiction. The mother can
then seek enforcement of the Oregon or- der in Arizona, using any of the enforce- ment procedures in the UCCJEA or other procedures available in that State. The UCCJEA and the PKPA require Arizona to enforce the mother’s order.
Duty To Enforce Under
the UCCJEA
The UCCJEA requires State courts to rec- ognize and enforce child-custody determi- nations made in substantial conformity with the jurisdictional provisions of the Act or made under factual circumstances that meet the jurisdictional standards of the Act.^62 This basic duty to enforce is the same as that in the UCCJA; however, a custody order is enforceable under the UCCJEA only if the issuing court exer- cised jurisdiction in conformity with the UCCJEA.
In addition to establishing a duty to en- force sister States’ custody and visitation orders, the UCCJEA creates five new inter- state enforcement mechanisms. These mechanisms, each described in this sec- tion, supplement any other enforcement procedures available under State law.
Registration of an out-of-State custody determination. The UCCJEA creates a process for registering out-of-State cus- tody and visitation orders.^63 Parents and other parties are not required to register a custody or visitation determination but may choose to do so for the following reasons:
u Registration puts the courts of a State on notice of an existing custody deter- mination and of the issuing court’s exclusive, continuing jurisdiction.
u Registration is a pretest of enforceabili- ty; that is, it can be used to obtain as- surance that the custody determination will be enforced in the future.^64
u Registration limits possible defenses to enforcement at a later date, which sim- plifies and expedites subsequent en- forcement efforts.
u Uncontested registration may obviate the need for lawyers in a case, which would be a great benefit to parents who cannot afford counsel.
u A registered order is enforceable as if it were a local order as of the date of registration.
The process for registering out-of-State custody determinations is straightfor- ward. A party sends a request for registra- tion to a court in another State, along with copies of the child-custody determination and other required information. The court files the order as a foreign judgment and serves notice on the parent (or person acting as a parent) who has been awarded custody or visitation in the order. Persons who receive notice have 20 days to re- quest a hearing to contest the validity of the order. If no such request is made, the order is confirmed as a matter of law and may be enforced as if it were a local order.
If the registration is contested, only three defenses are available:
u That the court making the custody de- termination lacked jurisdiction. u That the person contesting registra- tion was entitled to but did not receive notice of the underlying custody pro- ceeding in accordance with the UCCJEA. u That the child-custody determination has been vacated, stayed, or modified. The UCCJEA’s registration process differs from the UCCJA provision requiring clerks of court to maintain a registry for filing out-of-State decrees. The UCCJA’s registry provision was omitted from the UCCJEA.^65
Temporary visitation orders. Under the UCCJEA, courts may issue temporary orders to enforce visitation schedules in other States’ court orders or visitation provisions of out-of-State orders that do not contain a specific schedule.^66 For in- stance, courts may order compensatory visitation time or give specific meaning to another State’s award of “reasonable visitation.”
Although this section gives judges the authority to issue temporary orders to facilitate visitation that might not other- wise occur, it does not confer modification jurisdiction to make wholesale changes to sister States’ orders. Consistent with the UCCJEA and the PKPA, permanent changes to the underlying custody order may be made only by the court with modi- fication jurisdiction, unless that State declines to exercise jurisdiction.
Expedited enforcement of custody de- terminations. Sections 308–310 of the UCCJEA create a new enforcement reme- dy, the object of which is the immediate recovery of a child.^67 It is fast and summa- ry in nature. If there is a risk of serious
physical harm or abduction, this remedy may be used in concert with a warrant to take physical custody of a child (UCCJEA section 311, as discussed below).
The UCCJEA’s expedited enforcement sec- tions provide for an enforcement hearing, normally within 24 hours of service (i.e., on the next judicial day after service). If that date is impossible, the hearing must be held on the first judicial day possible. In other words, this is a priority proceed- ing on the fastest track available.
At the hearing, the respondent has limited defenses, the availability of which de- pends on whether the order has been reg- istered. If so, the only available defense is that the order has since been vacated, stayed, or modified. If the custody order has not been registered, the respondent may assert the three defenses that could have been raised in a registration pro- ceeding: (1) lack of jurisdiction in the is- suing court; (2) the underlying custody order has been vacated, stayed, or modi- fied; and (3) lack of notice.
At the conclusion of the hearing, unless the respondent has established a defense, the court must issue an order authorizing the petitioner to take immediate physical custody of the child. Pursuant to section 312, the court must also order the re- spondent to pay the petitioner’s neces- sary and reasonable expenses^68 unless the respondent shows that such award would be clearly inappropriate. (If the respond- ent had prevailed, the court would assess the petitioner with costs and expenses be- cause section 312 expressly provides for an award to the “prevailing party.”) The return order may also include a directive for law enforcement assistance.
Warrants to take physical custody of a child. The UCCJEA also includes a proce- dure to ensure a child’s safety and pres- ence in the jurisdiction when notice of an enforcement proceeding might cause the recipient to harm or flee with the child.^69 On a finding that a “child is imminently likely to suffer serious physical harm or be removed from the State,” section 311 specifically authorizes a court to issue a warrant directing law enforcement officers to take immediate physical custody of the child.
Warrants to take physical custody of a child (also known as “pickup” orders) are obtained under the UCCJEA in conjunc- tion with an enforcement action. The peti- tioner files a verified application to obtain a warrant to take physical custody of the
Readers interested in promoting enact- ment of the UCCJEA in their State should contact the Governor’s office and members of the Judiciary Committees in their State legislature to request action on the legisla- tion. Legislative packets and copies of the
law may be obtained from NCCUSL. (Con- tact information for NCCUSL appears in the “For Further Information” section.)
Once the UCCJEA is enacted, its success will depend on lawyers using it wisely,
courts interpreting it uniformly, and pub- lic officials using the law’s new tools ef- fectively to minimize the harmful effects children endure when they are pawns in interjurisdictional custody battles.
District attorneys and law enforcement officers in California have had the statu- tory authority to intervene in civil child custody enforcement cases for more than 20 years. The UCCJEA’s “public officials” provisions are modeled on California law. Although California’s en- actment of the UCCJEA has changed some enforcement practices,^1 it is useful to examine the extensive pre-UCCJEA experience of California’s prosecutors and law enforcement officers in these cases.
A California prosecutor seeking to re- cover a child being wrongfully kept in another State (in violation of a custody determination) may evaluate the case to determine whether to initially proceed criminally or civilly. The prosecutor will consider several factors in determining his or her approach. Factors affecting the decision include the following:
u Facts surrounding the abduction.
u Evidence that the child is in danger.
u The child’s age.
u Date the child was initially taken.
u The likelihood that the child will be removed from the country.
u Concealment of the child.
u Allegations or evidence of domestic violence or child abuse.
u The criminal history of both parties.
u The probability of recovering the child without pressing criminal charges against the abductor.
u The assistance available from the other State without pressing criminal charges.
The Role of Prosecutors and Law Enforcement in Civil Custody Enforcement: California’s Experience
u The likelihood of flight.
u The health and welfare of the child.
Although the prosecutor may initially choose a civil approach, he or she re- tains the discretion to proceed criminally against the abductor if the facts and cir- cumstances warrant (e.g., where facts are uncovered that indicate that the child may be endangered or abused).
Under civil enforcement, once the abduct- ing parent and the child are located, the district attorney may contact the abduct- ing parent by telephone, explain the law, and request a voluntary return. If the abducting parent refuses to cooperate or if such contact may trigger flight and con- cealment of the child, the district attorney will secure an order from the California court directing the district attorney to re- cover the child. This order gives the dis- trict attorney temporary custody of the child for the purpose of the child’s recov- ery and designates temporary placement of the child. (The court may order the child placed with the left-behind parent, in foster care, or otherwise, depending on the facts and circumstances of the case.) The district attorney (or criminal investiga- tor working with the district attorney) then contacts the law enforcement agency and the court in the jurisdiction where the child is located to arrange for pickup of the child (and to inquire about a UCCJEA enforcement proceeding, if applicable). The district attorney ascertains the pro- cedures and requirements of the law en- forcement agency and the court regarding enforcement practices and any other per- tinent issues, such as arrangements for overnight shelter and care.
If the law enforcement agency is coopera- tive, pickup of the child generally goes smoothly. If a court hearing is required, the presence and/or testimony of the dis- trict attorney’s investigator may be suffi- cient for the court to order the return of the child with the investigator. If the local law enforcement agency is not coopera- tive or if an enforcement action is re- quired, the district attorney may retain a
lawyer (at State expense) to bring the action under local law.
In predecree abduction cases (i.e., when there is no custody determination at the time of the abduction), the district attorney usually requires the left-behind parent to initiate a custody proceeding. However, the district attorney can file the appropriate initial pleading in certain cases.
In cooperation with the California State Attorney General, California district attorneys also play an important role in international child abduction cases in- volving the Hague Convention. When a child is abducted to California from a Hague Convention country, the district attorney may seek the voluntary return of the child or pursue a court action under the Convention for the return of the child. When a child is abducted from California to a Hague Convention coun- try, the district attorney is involved in locating the child and may file an appli- cation with the U.S. Department of State or directly with the foreign Central Authority under the Hague Convention seeking the child’s return.
Based on California’s experience, the cost of using prosecutors and law en- forcement in the civil enforcement of custody matters should be modest. Using civil remedies to resolve custodial interference cases typically costs less than prosecuting wrongdoer parents. In 1989, the California Controller’s Office paid counties $3.3 million for their work in 5,890 cases statewide. The 1991– budget was also $3.3 million, but prose- cutors assisted in almost 8,000 cases of civil custody enforcement and recov- ered 3,000 abducted children. The vol- ume of cases has grown since then, with corresponding increases in State spending, as more counties have be- come involved in civil custody enforce- ment. Other States can expect to spend less than California because California, the most populous State, probably has the highest volume of custodial interfer- ence cases in the country.
(^1) One of the most important changes since enact- ment of the UCCJEA is the increase in interstate judicial communication to address jurisdictional and enforcement issues.
For Further Information
For additional information on the UCCJEA, readers may contact the organizations listed and described below. Brief descrip- tions of selected publications available from each organization are also provided.
Organizations
American Bar Association (ABA) Center on Children and the Law 740 15th Street NW., Ninth Floor Washington, DC 20005– 202–662– 202–662–1755 (fax) ctrchildlaw@abanet.org www.abanet.org/child
The ABA Center on Children and the Law concentrates on legal issues that directly affect children. The Center’s Obstacles to the Recovery and Return of Parentally Abducted Children Project, funded by OJJDP and directed by Linda Girdner, Ph.D., documented problems that parents face when children are abducted inter- state and internationally. Among the many recommendations contained in the origi- nal Obstacles Project’s final report was the need for streamlined, uniform proce- dures to expedite interstate enforcement of custody and visitation orders. In fur- therance of that goal, the Obstacles Proj- ect’s Legal Director, Patricia M. Hoff, J.D., served as an advisor to the UCCJEA
drafting committee. Although the Center currently has no ongoing projects related to parental kidnapping, its Web site in- cludes an extensive collection of literature about parental kidnapping and links to other resources.
American Bar Association (ABA) Section of Family Law 750 North Lake Shore Drive Chicago, IL 60611– Attn: Jeff Atkinson, ABA advisor to the UCCJEA drafting committee 312–988– www.abanet.org/family/home.html
The ABA is the largest voluntary associa- tion of lawyers in the United States, and its Section of Family Law is devoted to stabilizing and preserving the family. The spring 1998 issue of Family Law Quarterly, one of the section’s two publications, focused on two uniform laws that affect children and families: the UCCJEA and the Uniform Interstate Family Support Act. The ABA advisor to the UCCJEA drafting committee, Jeff Atkinson, is an active member of the Section of Family Law.
National Center for Missing and Exploited Children (NCMEC) Charles B. Wang International Children’s Building 699 Prince Street Alexandria, VA 22314– 800–843–
703–274–2220 (fax) 77431.177@Compuserve.com www.missingkids.com
NCMEC is a private, nonprofit clearing- house that was established in 1984 and operates under a congressional mandate. A resource center for child protection, NCMEC collects and distributes informa- tion on missing and exploited children and operates a national toll-free hotline, 800–THE–LOST (800–843–5678), for indi- viduals to report missing children or re- quest information. NCMEC assists fami- lies and can be of tremendous help to law enforcement in case management, case tracking, lead and information analysis, and coordination of responses across jurisdictional lines.
National Center for Prosecution of Child Abuse (NCPCA) 99 Canal Center Plaza, Suite 510 Alexandria, VA 22314 703–739– 703–549–6259 (fax) www.ndaa-apri.org/apri/NCPCA/Index.html
The National Center for Prosecution of Child Abuse recognizes child abuse as a crime for which perpetrators must be held accountable. Because no area of criminal justice has changed so rapidly in the past 15 years, the need for profession- al specialization is especially great. Com- mitted to excellence in training, technical assistance, and publications, the National Center for Prosecution of Child Abuse is meeting that need. In cooperation with prosecutors and other child abuse profes- sionals in the United States and interna- tionally, the Center demonstrates concern for a particularly vulnerable group of crime victims based on the premise that children are entitled to equal treatment under the law.
National Conference of Commissioners on Uniform State Laws (NCCUSL) 211 East Ontario Street, Suite 1300 Chicago, IL 60611 312–915– 312–915–0187 (fax) www.nccusl.org
For more than 100 years, NCCUSL has pro- moted uniformity in State law and inter- state cooperation by developing uniform acts and endeavoring to secure their en- actment by the voluntary action of each State government. The conference in- cludes commissioners from each State, the District of Columbia, the Common- wealth of Puerto Rico, and the U.S. Virgin Islands. Drafting committees made up of
A Prosecutor’s Perspective
As a general proposition, California’s prosecutors and law enforcement officers are very supportive of the dual civil/criminal approach to custodial interference cases. In 1992, when the State was making programmatic cuts to reduce its deficit, strong statewide support from the criminal justice community fended off an effort to cut a program that implemented this approach. A district attorney with expertise in child abduction cases sums up why the program was well received by California’s crimi- nal justice community and why the UCCJEA should be supported:^1
As a prosecutor assigned to the Child Abduction Unit of the Santa Clara County D.A.’s Office for the past 6 years, I can personally attest to the incalcu- lable value of the availability of civil, as well as criminal, enforcement tools in resolving interstate child abduction cases. This office alone has recovered ap- proximately 1,777 children in the last 10 years. The ability to act in a civil con- text has been an important factor in recovery of these children. In the majority of the custody and visitation disputes I have handled, resolving the issues without criminal proceedings has clearly served the best interests of the chil- dren involved. Other states do not have the same ability to serve and recover their children. The most effective deterrent to child abduction in this country would be the nationwide network of law enforcement and prosecutors this bill [the UCCJEA] would create.
(^1) J.M. Heim, Deputy District Attorney, Child Abduction Unit, Santa Clara County, CA, personal communication, March 1996, to Justice Marian Opala, Chair, UCCJEA Drafting Committee, in support of the prosecutor/law enforcement sections of the UCCJEA.
concerning law enforcement agencies’ access to records maintained by schools, hospitals, child welfare agencies, domes- tic violence shelters, and runaway shel- ters. The Report also covers information release procedures and includes a check- list for maximizing record access from service providers. The Report’s appen- dixes contain additional information and other relevant statistical data on the con- fidentiality of records in searches for missing children, jurisdictions that allow record access or impose reporting re- quirements in missing children cases, and State laws affecting record access.
The Criminal Justice System’s Response to Parental Abduction (NCJ 186160). This Bulletin summarizes primary findings from a study of the criminal justice sys- tem’s response to parental abduction. Funded by OJJDP and conducted jointly by the American Bar Association Center on Children and the Law and Westat, the study examined all aspects of the system’s response, including the reporting of the incident, investigation of the case, loca- tion and recovery of the child, and crimi- nal prosecution of the abductor. The Bul- letin reports results from the study’s national survey of law enforcement agen- cies and prosecutors, site visits, and case file reviews and presents implications for legal, programmatic, and policy reforms.
Early Identification of Risk Factors for Parental Abduction (NCJ 185026). This Bulletin presents the design and findings of four OJJDP-funded projects on prevent- ing family abductions: a documentary study, a criminal sanctions study, an interview study, and an intervention study. The findings provide information regarding the risk factors associated with parental kidnapping and strategies that can be used to intervene with at-risk families.
Family Abductors: Descriptive Profiles and Preventive Interventions (NCJ 182788). This Bulletin describes preventive interventions, such as counseling, conflict resolution, and legal strategies, that seek to settle custody and access disputes for families identified as at risk for parental abduction.
A Family Resource Guide on International Parental Kidnapping (NCJ 190448). This guide presents practical and detailed advice about preventing international kid- napping and increasing the chance that children who are kidnapped or wrongfully retained will be returned. It provides de- scriptions and realistic assessments of
the civil and criminal remedies availa- ble in international parental kidnapping cases, explains applicable laws and identi- fies both the public and private resources that may be called upon when an interna- tional abduction occurs or is threatened, and prepares parents for the legal and emotional difficulties they may experience.
International Parental Kidnapping: A Law Enforcement Guide (forthcoming). This guide provides practical information on the public and private resources and services that are available to assist law enforcement in international parental abduction cases. It explains applicable laws, defines agency roles and responsi- bilities, describes criminal and civil reme- dies, examines methods for prevention and interception, and discusses impor- tant issues and procedures to be ad- dressed during an international parental abduction case.
Issues in Resolving Cases of International Child Abduction (NCJ 182790). This Report documents a lack of uniformity in the application of the Hague Convention across countries. It includes case histo- ries, survey findings on left-behind par- ents, selected practices in international family abduction cases, and recommenda- tions for the judicial and legal systems.
Issues in Resolving Cases of International Child Abduction by Parents (NCJ 190105). This Bulletin provides an overview of the major survey findings, selected good practices, and recommendations from the Report Issues in Resolving Cases of International Child Abduction (see previous entry).
Obstacles to the Recovery and Return of Parentally Abducted Children (Report: NCJ 144535; Research Summary: NCJ 143458). These publications present the results of a 2-year study of the legal, policy, proce- dural, and practical obstacles to the loca- tion, recovery, and return of parentally abducted children. They include recom- mendations to overcome each obstacle and extensive appendixes that describe the pros and cons of existing legal proce- dures for enforcing a custody order, sam- ple forms to be used with existing legal procedures, and summaries of both civil and criminal appellate decisions.
Parental Abduction: A Review of the Literature (Available online only: ojjdp. ncjrs.org/pubs/missing.html#186160). This online resource summarizes current research and literature relating to the
primary issues involved in parental abduction.
Prevention of Parent or Family Abduction Through Early Identification of Risk Factors (NCJ 182791). Based on analyses of data from several California studies related to child abductions by a noncustodial par- ent, this Report outlines a set of charac- teristics of parents who abduct their children and presents indepth socio- demographic and legal information about the families of abducted children.
Using Agency Records To Find Missing Children: A Guide for Law Enforcement (NCJ 154633). This Summary focuses on procedures for obtaining and using the records of certain types of human service providers to find missing children. It ex- amines the use of, access to, barriers to securing, and limitations of records from schools, medical care providers, runaway shelters, and domestic violence shelters.
When Your Child Is Missing: A Family Survival Guide (NCJ 170022; Spanish ver- sion: NCJ 178902). This guide, written by parents and family members who have experienced the disappearance of a child, explains how parents can best participate in the search for a missing child. It dis- cusses the parents’ relationship with law enforcement, examines issues related to the media, and presents practical in- formation about distributing fliers and photos, organizing volunteers, and man- aging monetary donations.
Bibliography Gonzalez, R.M., Tumonis, E.F., and Dun- ham, R. 1998. Attorney General Child Ab- duction Reference Manual. Sacramento, CA: State of California Department of Justice, Office of the Attorney General.
Hoff, P.M. 1998. The ABC’s of the UCCJEA: Interstate child-custody practice under the new act. Family Law Quarterly 32(2): 267–299.
Spector, R.G. 1998. Uniform Child-Custody Jurisdiction and Enforcement Act (with Prefatory Note and Comments). Family Law Quarterly 32(2):301–384.
Endnotes
- Uniform Child-Custody Jurisdiction and Enforcement Act (1997), 9(1A) U.L.A. 657 (1999). The text is accessible online at www.nccusl.org.
- Uniform Child Custody Jurisdiction Act, 9(1A) U.L.A. 271 (1999).
- Alabama, Alaska, Arizona, Arkansas, Cali- fornia, Colorado, Connecticut, the District of Columbia, Georgia, Idaho, Iowa, Kansas, Maine, Minnesota, Montana, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Tennessee, Texas, Utah, Virginia, Washington, and West Virginia.
- Florida, Hawaii, Illinois, Indiana, Mary- land, Mississippi, Missouri, New Jersey, New York, and Rhode Island.
- The terms “child-custody determina- tion,” “custody determination,” and “order,” as used in this Bulletin, refer to custody determinations and visitation determinations.
- Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A.
- Violence Against Women Act of 1994; Violence Against Women Act of 2000, 18 U.S.C. §§ 2265, 2266.
- The complete text of the Hague Conven- tion can be found at 51 Fed. Reg. 10,494 et seq. (1986) or online via the U.S. Depart- ment of State’s Web site at www.travel. state.gov, under “International Parental Child Abduction.”
- International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq.
- Uniform Child Custody Jurisdiction Act, Prefatory Note. The Full Faith and Credit clause requires that full faith and credit “be given in each state to the public acts, records, and judicial proceedings of every other state” (U.S. Constitution, article IV, § 1).
- Id.
- Girdner, L.K., and Hoff, P.M., eds. 1993. Final Report: Obstacles to the Recovery and Return of Parentally Abducted Children. Washington, DC: American Bar Associ- ation Center on Children and the Law (hereinafter Obstacles Project Final Re- port ). The Obstacles Project Final Report was considered by the UCCJEA drafting committee, and numerous recommenda- tions from the report are reflected in the uniform act. In addition to suggesting amendments to the UCCJA and the PKPA, the Obstacles Project Final Report pro- posed an original “Act To Expedite En- forcement of Child Custody Determina- tions.” The purpose of the statute was to alleviate the shortcomings and lack of uni- formity in then-existing procedures for enforcing child-custody and visitation orders that had frustrated many parents trying to exercise their lawful court- ordered rights. Article 3 of the UCCJEA incorporates many ideas from the proposed statute.
- 28 U.S.C. § 1738A, “Full Faith and Credit Given to Child Custody Determinations.”
- 28 U.S.C. § 1738A(d). This section es- tablishes the principle of “exclusive, con- tinuing jurisdiction.”
- 28 U.S.C. § 1738A(g). This section pro- hibits simultaneous proceedings.
- 28 U.S.C. § 1738A(e).
- Like the UCCJA, the PKPA defines “home State” as the State in which a child has lived with a parent or person acting as a parent for at least 6 months preced- ing the commencement of a child-custody proceeding.
- See endnote 12, supra_._
- See endnotes 6–9, supra_._
- 18 U.S.C. § 2266. The VAWA’s definition of “protection order” expressly excludes child-custody orders issued pursuant to State child-custody laws (except to the extent that they are entitled to Full Faith and Credit under Federal law).
- As of July 2001, the Hague Convention was in force between the United States and 49 countries. For a complete list of countries that are party to the Conven- tion, see the U.S. Department of State’s Web site (www.travel.state.gov) or the Hague Conference on Private International Law’s Web site (www.hcch.net).
- The Hague Convention, ratified in 1986, took effect in the United States in 1988 following enactment of the Interna- tional Child Abduction Remedies Act.
- UCCJA, section 1 (Purposes of Act; Construction of Provisions). The UCCJEA omitted a “purposes” clause for stylistic reasons: NCCUSL no longer includes claus- es of this type in its uniform acts. The offi- cial comments note, however, that many of the original purposes of the UCCJA remain valid.
- In re Michelle Lemond, 413 N.E.2d 228 (Ind. 1980). An extraordinary judicial panel—consisting of the Supreme Court of Indiana; the Court of Appeals of Indiana, First District; and the Chief Judge of the Court of Appeals—held two judges, a pri- vate attorney, and a county prosecutor in indirect criminal contempt for willfully and intentionally disobeying orders of the State Supreme Court and the mandate of the Court of Appeals in an interstate cus- tody enforcement case brought pursuant to the UCCJA. Each judge and lawyer was fined $500 and charged with costs. The contempt proceeding stemmed from a custody dispute between a mother in
Hawaii and her ex-husband, who retained custody of their daughter in Indiana. Proceeding in accordance with the UCCJA, the mother sought to enforce the Ha- waiian court order in Indiana. The father resisted at every level of the State’s courts. After 3 years of litigation, the mother final- ly prevailed; the father had exhausted his remedies in the State courts, and it was expected that the orders of the State Su- preme Court and the Court of Appeals would be honored and the child returned to her mother. However, the father’s coun- sel staged an 11th hour attempt to shield his client from the orders of Indiana’s high- est courts by initiating the filing of a CHINS (Child In Need of Services) petition by the county prosecutor in juvenile court. The juvenile court issued the CHINS petition minutes before the Circuit Court’s issu- ance of a writ of habeas corpus ordering the return of the child to her mother. However, the Circuit Judge assisted the father’s efforts by ordering that the writ not be executed for 4 hours and then dis- qualifying himself from hearing the CHINS petition. A new judge was named to hear the CHINS petition, and it was this judge who found the daughter in need of servi- ces and ordered that she be detained for a mental examination. Characterizing the sole legal issue in the contempt proceeding as whether the juve- nile court’s jurisdiction was properly in- voked, the courts in this case held that they would “not tolerate the attempted use of emergency jurisdiction to reopen a fully litigated and decided custody battle” (413 N.E.2d at 245). The courts “became convinced that [the CHINS hearing] was not a good faith effort to help a child in need of services. Rather, it was a well- orchestrated effort to thwart the orders of these Courts by prostituting the emer- gency authority of a juvenile court” (id. at 238). The juvenile court judge should have recognized the CHINS petition for what it was: “nothing more than a pretense for the judge assuming jurisdiction,” a sham designed to avoid the force and effect of the writ (id. at 242).
- 716 P.2d 991 (Cal. 1986), rev’d, 484 U.S. 400, 107 S. Ct. 2433 (1987).
- UCCJEA, section 102(4) (definition of “child-custody proceeding”).
- UCCJEA, section 201 (Initial Child- Custody Jurisdiction).
- UCCJEA, section 202 (Exclusive, Con- tinuing Jurisdiction). See also UCCJEA,
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Acknowledgments
This Bulletin was written by Patricia M. Hoff, J.D., a legal consultant on interstate and international child-custody, visitation, and parental kidnapping law. She was an advisor to the drafting committee of the UCCJEA on behalf of the ABA Center on Children and the Law while serving as Legal Director of the Center’s Obstacles to the Recovery and Return of Parentally Abducted Children Project. The author gratefully acknowledges the contribution of Janet Heim, J.D., Deputy District Attorney, Santa Clara County District Attorney’s Office, who wrote the Bulletin’s sidebars on California prosecutors’ long-time involvement in civil child-custody enforcement. The author also thanks Linda Girdner, Ph.D., former Director of Research at the ABA Center on Children and the Law and Project Director of the Obstacles Project, for her thoughtful comments on the Bulletin as it was being developed.
Points of view or opinions expressed in this document are those of the author and have not been approved by the House of Delegates or the Board of Governors of the American Bar Association. The views, accordingly, should not be construed as representing the official position or policies of the ABA.
This Bulletin is intended for educational and informational purposes and does not constitute legal advice. Readers with specific cases should consult their legal counsel.
This Bulletin was prepared under grant number 92–MC–CX–0007 from the Office of Juvenile Justice and Delinquency Prevention, U.S. De- partment of Justice.
Points of view or opinions expressed in this document are those of the author and do not necessarily represent the official position or policies of OJJDP or the U.S. Department of Justice.
The Office of Juvenile Justice and Delin- quency Prevention is a component of the Of- fice of Justice Programs, which also includes the Bureau of Justice Assistance, the Bureau of Justice Statistics, the National Institute of Justice, and the Office for Victims of Crime.
