Divorce is stressful, but perhaps no aspect of it causes more distress than establishing or changing the details of a child custody agreement. One or both parents, the child, and even extended family members can be affected if negotiations become heated. It can be even worse if the two parents live in different states: Which state has jurisdiction? Which court is responsible for hearing the case and making child custody and visitation decisions?
Some of the reasons for interstate custody cases include the following:
- One parent kidnaps the children and leaves the state with them in violation of the custody agreement.
- A custody order within a protection order issued by a court in one state conflicts with the custody agreement issued by a court in another state.
- A parent is abusive during visitation with their child who lives in another state, and the other parent seeks a modification of the custody order.
- A protection order sought by a parent in one state against the other parent in another state includes a custody provision.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Offers Clarity and Consistency
In 1997, the National Conference of Commissioners on Uniform State Laws (NCCUSL) drafted the Uniform Child-Custody Jurisdiction and Enforcement Act (the UCCJEA) to increase clarity when addressing this sensitive issue. The UCCJEA replaced the 1968 Uniform Child Custody Jurisdiction Act (UCCJA). Among other improvements, the UCCJEA clarified provisions that had been confusing in the UCCJA and added protections for domestic violence victims who had fled their home state. Since 1997, every U.S. state except Massachusetts has adopted the UCCJEA. The District of Columbia, Guam, and the Virgin Islands have also passed laws that contain its provisions.
The UCCJEA also promotes cooperation among courts handling questions of child custody in different states and reduces competition among states. A mandate for increased interstate judicial communication is a highlight of the UCCJEA and is a critical aspect of resolving complex child custody cases involving parents who reside in different states.
Overview of the Pennsylvania UCCJEA
Effective in 2004, the Pennsylvania UCCJEA (PA UCCJEA) governs how Pennsylvania courts will address issues of child custody when one parent lives in Pennsylvania and the other parent lives in another state. If one parent lives in Pennsylvania and the other lives in a foreign country, the PA UCCJEA also applies when considering custody arrangements. The foreign country is treated as if it were a U.S. state in these cases unless that country violates fundamental principles of human rights. When determining jurisdiction in a case involving a Native American child, Pennsylvania courts treat the child's tribe as if it were a state.
The UCCJEA, as drafted, provides uniform criteria when determining which state has jurisdiction in a child custody case, but the exact provisions in each state's UCCJEA can vary somewhat. The Pennsylvania Family Law Team at the Lento Law Firm can provide guidance on the implications of the PA UCCJEA and the UCCJEA of the other state or states relevant to your case. They can also guide you through the procedures related to determining jurisdiction for custody cases that fall under PA UCCJEA.
While child custody jurisdiction is intricate, we'll highlight the fundamentals of the UCCJEA to give you a better understanding.
Hierarchical Principles of the Uniform Child Custody Jurisdiction and Enforcement Act
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) does not cover any of the logistics of a case like adoption, juvenile delinquency, contractual emancipation, and other case details such as child support—it only addresses which court in which state is the suitable one to make child custody and visitation decisions. Any other matters are addressed by the court determined under UCCJEA to have jurisdiction.
The UCCJEA has established several hierarchical principles as methods of determining jurisdiction. They include (1) the "home state," (2) the "significant connection," (3) emergency situations, and (4) presence of the child with no other basis for taking jurisdiction. The court must offer an opportunity to be heard to the parties involved in the child custody and visitation issue as soon as it establishes it has a basis for jurisdiction under UCCJEA. The court can then make or modify a custody determination.
The "Home State"
The first phase of deciding jurisdiction is determining the child's home state. The home state is given priority and is defined as the state where the child has resided six months before proceedings are to start. At least one of the parents must live in the state for it to be considered. If a child is less than six months old, the home state is the state the child has lived in since birth.
For example, if a child has lived in Pennsylvania for the past six months or the child lived in Pennsylvania for at least six months before the filing of a complaint for custody in the Superior Court of Pennsylvania, Pennsylvania will be deemed the child's home state.
If a family moves from a state and then returns, the court in that state will determine whether the time spent out of state should be defined as temporary.
A Significant Connection
If there is no home state, or if the state refuses to exercise jurisdiction, then a state where the child or one of the parents has a significant connection may be able to claim jurisdiction. A significant connection requires more than the child's presence—there usually are relatives in that state, or there's a reason why it's in the child's best interest. In fact, a state's court may determine that a significant connection exists enough to establish jurisdiction over child custody, even if the child is not physically present in the state. The UCCJEA requires that courts in different states communicate and work with each other to resolve the jurisdiction question, and this is very important when more than one state qualifies for jurisdiction based on significant connection.
To help make a determination on jurisdiction, the court uses all of the substantial evidence—such as information from relatives, teachers, school counselors, healthcare providers, and therapists—it collects in the state.
For instance, if a child and her parents no longer live in Pennsylvania, it will obviously no longer be the home state. If the child moves with her mother to Texas, where she has lots of family, and the father moves to New Hampshire, where there is no family, then it's likely that Texas would now have jurisdiction over the case based on the significant connection principle.
In cases when a child has been abandoned or when the child and his or her parent or guardian have been subjected to abuse, the state where they currently reside may exercise emergency jurisdiction under the third principle. After an emergency order is entered, it will remain in effect until the child's true home state is determined. If this doesn't happen, the state that enacted the emergency order shall become the child's home state.
The court that enters an emergency order must communicate with the court in another state already hearing a custody case or issuing a custody order concerning the same parties. The communication between the two courts has three goals: 1) resolve the emergency as soon as possible; 2) protect all parties involved in the case; and 3) determine the duration of the emergency order.
Vacuum (All Other Situations)
If none of the above principles apply to a child's situation, then the state they currently reside in must fill the vacuum and exercise jurisdiction. For example, a family may move from state to state and stay less than six months in any one state. In this case, the state where the child currently resides, even if for only two or three months, will have jurisdiction. Children who fall into this category include migrant workers or members of the Armed Services, as well as children living with a series of relatives because their parents could not or would not provide care, or homeless children.
When One or More States Decline Jurisdiction
There are cases where both the home state and the state where significant connections for the child exist decline jurisdiction because another state is better suited for jurisdiction. For example, one of the parents plans to relocate to another state and establish a home there, and the circumstances will be better for the child. In a case like this, a court in that state would be the more appropriate forum, and each of the states where the parents currently reside would be an "inconvenient forum."
A court may also decline jurisdiction if it finds the petitioner has engaged in "unjustifiable conduct." For example, a parent flees the home state with their child to another state for no other reason than to establish jurisdiction there.
Pennsylvania Family Law Attorney
Jurisdiction matters in child custody can be incredibly complicated. If you are hoping to resolve child custody issues and have questions about jurisdiction in Pennsylvania, contact Joseph D. Lento and his Family Law Team at the Lento Law Firm online or by phone at 888-535-3686 for a consultation.