Child Custody

1  UCCJA, Hague Convention & Felony Child Stealing CHILD CUSTODY JURISDICTION  How to Decide Which Court Decides  by Michael L. Oddenino  ODDENINO & GAULE (www.oandglaw.com)  Introduction The Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA) are legislative responses to the child custody jurisdiction problem.  The Hague Convention on the Civil Aspects of International Child Abduction is the international response.  The UCCJA began as a model act which became virtually universal state law.  The PKPA, on the other hand, is federal law.  The UCCJA creates a two-prong approach to determining which court decides a custody case.  First, a general class of jurisdiction is established for custody cases.  Second, the law provides a mechanism intended to vest the right to exercise jurisdiction in only one state at any given time.  The UCCJA and the PKPA supersede all conflicting or contradictory laws.The UCCJA, the PKPA, and the Hague Convention apply only to those who have a right to custody. 1 The UCCJA and the PKPA each prescribes four bases for jurisdiction: (1) home state; (2) significant connection, plus evidence regarding the best interests of the child; (3) emergency; and (4) default jurisdiction (no other state has jurisdiction or has declined it).  The bases may overlap, so concurrent jurisdiction is common and conflicts of jurisdiction often occur.  For example, the “home state” may not be the same state as 1 Johnson v. Johnson , 493 S.E.2d 668 (Va. Ct. App. 1997); In re Prevot , 59 F.3d 556, 560 (6 th Cir. 1995); Caban v. Healey , 634 N.E.2d 540 (Ind. Ct. App. 1994); 42 U.S.C. 11603(3)(1)(A) (1994). 2 UCCJA, Hague Convention & Felony Child Stealing the one in which the parties have “significant connections” and where there is “substantial evidence” about the child’s best interests. 2 The UCCJA, the PKPA, and the Hague Convention on Child Abduction are all designed to prevent child abduction as well as providing a mechanism for determining which court has the right to decide a custody case.  These laws address the problems arising when one parent breaches another’s right to custody by removing the child from his “home state” or “habitual residence” and takes him to another jurisdiction, or when the parent retains the child in violation of another’s custodia l rights or interests. The primary factor for determining if a state has jurisdiction to decide a custody case is the “home state” status, where it is assumed that one will find the maximum amount of evidence on the child’s interests.  The “home state” is the jurisdiction in which the child has lived with his or her legal custodian for at least six months or a state which was the “home state” within six months of filing.  (For example, if a family lives in state A for one year, state A is the home state.  If the same family lived in state A for one year and then one parent moved to state B with the children and filed in state B after living in state B for only four months, state A is still the home state). 2 See, e.g. , In re Joseph D. , 23 Cal.Rptr.2d 574 (Cal. Ct. App. 1994); In re Marriage of Alexander , 623 N.E.2d 921 (Ill. App. Ct. 1993). 3 UCCJA, Hague Convention & Felony Child Stealing The UCCJA also allows a state to exercise jurisdiction on the basis of the children having “significant connections” with that state.  Thus, under the UCCJA, even though state A is the home state, state B might exercise initial jurisdiction on the basis of significant connections.  The PKPA intended to eliminate this possibility by making the “home state” the exclusive state to exercise initial jurisdiction notwithstanding that some other state had “significant connections.”  This is a major distinction between the UCCJA and the PKPA. These laws are also designed to avoid forum shopping, jurisdictional competition, and duplicative litigation.  They establish a scheme for determining which court among one or more state courts has jurisdiction, or, if more than one has jurisdiction, which should claim it. The UCCJA and the PKPA are also designed to facilitate and promote communication among courts which have or may have concurrent jurisdiction.  They require all states to honor prior custody orders.  A court that receives information on possible ongoing custody litigation in another state should communicate with the appropriate court in that state.  The law actually calls for a judge in state A to communicate with a judge in state B. The Jurisdictional Scheme The UCCJA provides subject matter jurisdiction and is the exclusive method of obtaining it in child custody cases.  Subject matter jurisdiction is determined by statutory definition (e.g., certain length of residence) and may not be conferred by consent of the parties.  Absence of subject matter jurisdiction may be raised by the trial court or the 4 UCCJA, Hague Convention & Felony Child Stealing parties at any stage of the proceedings. 3 3 Cordie v. Cordie , 538 N.W.2d 214, 216 (N.D. 1995). 5 UCCJA, Hague Convention & Felony Child Stealing The UCCJA establishes a system of concurrent and potentially conflicting jurisdiction.  The bases for jurisdiction are hierarchical and continuing jurisdiction always prevails.  Home state jurisdiction predominates over significant connection jurisdiction.  Emergency jurisdiction will trump either of those bases, but it is temporary.  Finally, if no state has jurisdiction on the basis of UCCJA or PKPA rules, the state in which the child and a party are domiciled may claim it. The law eliminates potentially endless procedural custody litigation by placing the bases of jurisdiction in the aforementioned descending preferential order and by providing for virtually exclusive continuing jurisdiction in the original decree state. 4 In addition, to achieve fairness and cooperation, mechanisms for communication and for declining jurisdiction were included. Continuing Jurisdiction 4 See, e.g. , Kessenich v. Kessenich , No. FA-96053295S, 1996 LEXIS 1517 (Conn. Super. Ct. June 11, 1996) (The fact that Connecticut had become the home state and had most significant connection and most evidence were not sufficient for Connecticut courts to modify a Michigan custody decree, where former husband continued to live in Michigan.  Michigan resolved the problem by declining jurisdiction.); McDow v. McDow , 908 P.2d 1049, 1051 (Alaska 1996) (a court may not modify another state’s custody decree if the latter court retains jurisdiction). 6 UCCJA, Hague Convention & Felony Child Stealing Once a court properly exercises jurisdiction in a child custody matter, that state is deemed “the decree rendering state.”  For example, if state A were the home state and the judge in state A conferred with the judge in state B where a parent filed after only four months claiming significant connections, and those judges determined that state A should exercise initial jurisdiction, state A would then have a hearing and render a custody decree.  Assume one parent continues to reside in state A while the other parent resides in state B with the children pursuant to state A’s decree.  Two years later the parent in state B wants to modify the custody or visitation schedule.  What happens? State B is now the home state as the children have lived there for two years.  State A is the decree rendering state as the initial and current order was rendered in state A.  Only state A has the right to exercise jurisdiction even though state B has home state jurisdiction because state A enjoys the continuing jurisdiction of the decree rendering state.   Thus, state B cannot properly exercise its jurisdiction unless state A specifically declines to exercise its continuing jurisdiction. Continuing Jurisdiction in the International Arena The dominance of continuing jurisdiction also applies to international cases 5 where a custody order has been rendered under a law consistent with the UCCJA. 6 For instance, 5 See, e.g., Chapoteau v. Chapoteau , 659 So.2d 1381 (Fla. Dist. App. Ct. 1995). 6 In re Stephanie M. , 867 P.2d 706 (Cal. 1994); In re Fischer , 666 So.2d 724, 725 (La. App. 4 th Cir. 1995); Koester v. Montgomery , 886 S.W.2d 432 (Tex. Ct. App. 1994) (UCCJA applies internationally as far as due process notice and similar requirements are concerned); Ruppen v. Ruppen , 614 N.E.2d 577 (Ind. Ct. App. 1993) (deferred to Italy). 7 UCCJA, Hague Convention & Felony Child Stealing a California decision decided by a California Family Court and affirmed by the Appellate Court held that the California courts had jurisdiction, under the UCCJA, to determine the custody of a minor Mexican national. 7 The minor, although a Mexican national, had resided in California for several years with her Mexican national parents.  The Court stated that one of the primary objectives of the UCCJA is to “avoid the disruption t o the life of a child involved in relitigation of custody matters . . . [O]nce a custody order is entered by a court with jurisdiction under [the UCCJA], that court has continuing exclusive jurisdiction [which prevails over any other basis].” 8 The court also held that no treaty or other source of international law precludes California courts from claiming jurisdiction in a case properly brought.  California was “home state” and the state “with the most significant connection” to the parents and the minor child and substantial evidence relating to the minor child’s well -being.  Some courts construe the UCCJA to apply internationally only when a foreign custody order is at issue. 9 Other states apply the general policies and objectives of the UCCJA to all custody jurisdiction disputes, including those in the international context. 10 7 In re Stephanie M. , 867 P.2d 706 (Cal. 1994), cert. denied sub nom. See also Mendez v. San Diego County Dep’t of Soc. Servs. , 513 U.S. 937, 115 S. Ct. 337 (1994). 8 Id. 9 E.g., Ivaldi v. Ivaldi , 672 A.2d 1226 (N.J. Super. Ct. App. Div. 1996); Koons v. Koons , 615 N.Y.S.2d 563, 567 (N.Y. Sup. Ct. 1994). 10 E.g., Black v. Black , 441 Pa. Super. 358, (1995) (applying UCCJA to international child custody disputes and construing the definition of “state” to encompass foreign nations); Dincer v. Dincer , 666 A.2d 281, 284 (Pa. Super. Ct. 1995); In re Stephanie M. , 867 P.2d 706 (Cal. 1994); Zenide v. Superior Ct. , 27 Cal.Rptr.2d 703 (Cal. Ct. App. 1994); Ruppen v. Ruppen , 614 N.E.2d 577, 582 (Ind. Ct. App. 1993). 8 UCCJA, Hague Convention & Felony Child Stealing Child Abduction Since the 1970s, the State Department says it has been contacted for help in about 11,000 international child abductions where a parent was involved. 11 The Justice Department reports some 354,100 cases of parental abductions a year, but fails to identify how many are international. 12 The State Department estimates an average of 400 to 500 new international cases per year, a number critics charge is a vast underestimate.  A recent study by the American Bar Association Center on Children and the Law shows that in 60 percent of international abduction cases, the children are never returned even though their whereabouts are known. 13 This study shows that parents spent an average of $33,500 in search and recovery of their children, and a quarter of left-behind parents spent $75,000 or more. 14 UCCJA section 23 provides that the general policies of UCCJA extend to the international arena.  The provisions of UCCJA relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature to custody institutions rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.  The same goes for the general policies and objectives 11 Timothy W. Maier, Insight on the News: Kids Held Hostage , News World Communications, Inc., March 8, 1999. 12 Id. 13 Id. 14 Id. 9 UCCJA, Hague Convention & Felony Child Stealing of the UCCJA and the PKPA. 15 15 Winton-Ibanez v. Ibanez , 690 So.2d 1344, 1346 (Fla. Dist. Ct. App. 1997) (the general policies of the UCCJA apply internationally). 10 UCCJA, Hague Convention & Felony Child Stealing Parental kidnaping is a federal felony, calling for up to three years imprisonment. 16 It is also a felony in most states. 17 The federal felony provides at least three affirmative defenses: (1) custody or visitation award to defendant pursuant to UCCJA; (2) flight from a pattern of domestic violence; and (3) defendant had proper physical custody and failed to return the child for reasons beyond his control. 18 The Hague Convention The UCCJA and the PKPA are not the only laws on international jurisdiction over child custody.  In 1980, the Hague Convention on the Civil Aspects of International Child Abduction was formed to complement our UCCJA and PKPA in the international arena. 19 The Hague Convention is different from the UCCJA and PKPA in that it does not create recognition and enforcement standards, but demands the prompt restoration of the custody that existed before the alleged abduction. 20 16 18 U.S.C. 1204 (1994). 17 In California, the applicable statute is Penal Code Section 278, which states “Every person, not having a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals any child with the intent to detain or conceal that child from a lawful custodian shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.” 18 18 U.S.C. 1204 (1994) provided that the defendant make reasonable efforts to notify the other legal custodian of the problem within 24 hours of the end of his visitation period. 19 Hague International Child Abduction Convention, 51 Fed. Reg. 10498 (1986); Department of State, Treaties in Force 328 (1989); Exec. Order No. 12,648, 53 Fed. Reg. 30637 (1988). 20 See Martin J. Bodzin, Comment, International Parental Child Abduction: The Need for Recognition and Enforcement of Foreign Custody Decrees, 3 Emory J. Int’l 11 UCCJA, Hague Convention & Felony Child Stealing Dispute Res. 205, 212 (1989). 12 UCCJA, Hague Convention & Felony Child Stealing The United States ratified the Hague Convention in 1986.  It went into effect in 1988, upon the enactment of its enabling legislation, the International Child Abduction Remedies Act (ICARA). 21 This Act provides that it “shall apply to a ny child who was habitually resident in a contracting state immediately before any breach of custody or access rights.” 22 The Convention’s stated purpose is “to secure the prompt return of children wrongfully removed to or retained in any Contracting State ,” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” 23 The Hague Convention’s underlying policy is primarily to ascertain a speedy return of an abducted child to the state in which he or she was an habitual resident, without undertaking a full investigation of the case’s merits. 21 42 U.S.C. 11601-11610 (1994). 22 Hague Convention on the Civil Aspects of International Child Abduction, Ch. I, art. 4. 23 Hague Convention on the Civil Aspects of International Child Abduction, Ch. I, art. 1, (a), (b); Merideth v. Merideth , 759 F. Supp. 1432, 1434 (D. Ariz. 1991). 13 UCCJA, Hague Convention & Felony Child Stealing The remedies of the Hague Convention may be invoked when two threshold issues have been satisfied by a preponderance of the evidence. 24 First, the moving party must establish that he or she had lawful custody rights when the child was wrongfully removed or retained.  Second, the removal or retention must be from the child’s “habitual residence.”  Articles 3 and 5(a) of the Convention provide that the removal or retention is wrongful when “(a) it is in breach of rights of custody attributed to a person . . . under the law of the state in which the child was a habitual resident immediately before the removal or retention; and (b) at the time of the removal or retention, those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”  Custody rights are determined by the law of the child’s “habitual residence,” a term left u ndefined in the Convention and in the United States’ implementing legislation, leaving the issue to be decided upon the facts and circumstances of the case. 25 United States courts have held that the terms of the Convention are to be construed narrowly. 26 Conclusion The framework of laws determining proper exercise of custody jurisdiction is sufficient to answer most custody dispute problems.  While some judges create problems by not knowing or following the jurisdictional guidelines, forum shopping in custody cases is not nearly the problem it was before the implementation of these laws.  Armed with the knowledge of the “off the rack” dictates of the jurisdictional laws, an attorney 24 In re Prevot , 59 F.3d 556, 560 (6 th Cir. 1995). 25 Merideth v. Merideth , 759 F. Supp. 1432, 1434 (D. Ariz. 1991). 26 E.g., Rydder v. Rydder , 49 F.3d 369 (8 th Cir. 1995). 14 UCCJA, Hague Convention & Felony Child Stealing can provide clients with advice well worth the fees charged.