December 1999
|
|
December 1999 |
|
Classifieds Letters Display Ads Archives Article Index Dec '99 Issue Latest Issue MSBA Home Page |
 Determining Child Custody Across Jurisdictions by Thomas W. Tuft and Valerie A. Downing |
|
Interstate custody disputes have long been a source of protracted and costly litigation. Federal and state legislation intended to address the problem of parental kidnapping across state lines has created a complex and sometimes contradictory jurisdictional system. The Uniform Child Custody Jurisdiction Act (UCCJA) and the Federal Parental Kidnapping Prevention Act of 1981 (PKPA) as amended by the Visitation Rights Enforcement Act of 1998 (VREA), have been the principal sources of law governing interstate child custody determinations and modifications. However, effective January 1, 2000, The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified as Minn. Stat. Chapter 518D, will replace the UCCJA in Minnesota. (At this writing, in October 1999, the UCCJEA has been adopted in 14 states and is under consideration in nine state legislatures.) The UCCJEA promises to alleviate some of the frustration related to interstate custody disputes by: (1) expanding and clarifying coverage of the act; (2) establishing a jurisdictional hierarchy consistent with the PKPA; (3) increasing judicial communication and cooperation; and (4) adding significant mechanisms to allow enforcement of custody and visitation orders issued by another state. However, the new law is not without certain discrepancies and pitfalls. The UCCJEA will be the primary source of law for determining whether a Minnesota court has subject matter jurisdiction to make an initial custody determination. The UCCJEA and the PKPA will govern whether a court has jurisdiction to modify an existing custody order. The UCCJEA expands its definition of custody proceedings to all "proceedings in which legal custody, physical custody or visitation with respect to a child is an issue," but explicitly excludes delinquency and contractual emancipation proceedings and proceedings to authorize emergency medical care for a child.1 Another notable exception to the broad coverage of the UCCJEA is in the area of adoption.2 The Uniform Adoption Act of 1994 (UAA) includes interstate jurisdictional rules for adoptions; however, Minnesota has not adopted the UAA. The Interstate Compact on the Placement of Children (ICPC), which has been enacted by all 50 states, addresses retention of jurisdiction for custody determinations pursuant to an adoption proceeding when an out-of-state placement has been effected. Additionally, the UCCJEA covers international custody and visitation proceedings3 and tribal proceedings may be covered upon election by the enacting state. Minnesota has opted to include tribal proceedings in its codification of the UCCJEA.4 The inclusion of international and tribal orders, subject to their substantial conformity with UCCJEA jurisdictional standards, is a step forward in eliminating the problem of conflicting custody determinations and in deterring parental kidnapping by minimizing the likelihood that parents will attempt to obtain a more favorable custody determination in a foreign jurisdiction. |
 Thomas W. Tuft is the sole proprietor of Thomas Tuft Law Offices in St. Paul. A 1993 graduate of the University of Minnesota Law School, he works predominantly in family law and has a special interest in interstate and international custody cases.  Valerie A. Downing joined Thomas Tuft Law Offices as an associate in May 1999 and practices primarily in the areas of family and criminal law. She is a 1997 graduate of the University of Minnesota Law School. |
|
"The increased communication
between the courts and parties will promote speedy and impartial
resolutions of jurisdictional disputes." |
The UCCJEA eliminates the most problematic discrepancies between the UCCJA and the PKPA by harmonizing state and federal jurisdictional principles. For initial custody determinations, the UCCJEA gives precedence to "home state" jurisdiction consistent with the PKPA. If there is no home state, the UCCJEA allows a court to assume jurisdiction based upon significant connection, more appropriate forum, or vacuum jurisdiction respectively.5 The UCCJA had authorized significant connection jurisdiction whether or not there was home state jurisdiction available elsewhere, thereby inviting the issue of concurrent jurisdiction. For modification proceedings, the UCCJEA introduces exclusive continuing jurisdiction as a first basis for modification jurisdiction in conformity with the PKPA.6 This change eliminates the possibility of concurrent proceedings in the former and new home states of a child by allowing the child’s former home state to retain jurisdiction if: (1) there continues to be a significant connection to the former home state; or (2) the parent or person acting as a parent continues to reside in the state. With regard to temporary emergency jurisdiction, the UCCJEA expands temporary emergency jurisdiction to include situations where the child or the child’s parent or sibling is at risk of mistreatment or abuse.7 However, the UCCJEA no longer covers neglect cases consistent with the PKPA. If a court elects to exercise emergency jurisdiction, immediate judicial communication is required and notice and an opportunity to be heard must be given to the parties before an emergency custody determination is enforceable interstate.8 The UCCJEA attempts to increase judicial and party cooperation in jurisdictional decision making and to maximize the flow of information between the parties. First, the UCCJEA authorizes courts to communicate about any proceeding arising under it and to allow the parties to participate in the communication; it also encourages the court to make a record of the communication. However, the UCCJEA permits communication between the courts about scheduling and court records without informing the parties or making a record of the communication.9 As previously mentioned, immediate communication is mandated if the court assumes emergency jurisdiction and is aware of a simultaneous custody proceeding or of an existing custody determination.10 Second, the UCCJEA authorizes the use of modern communication methods such as audiovisual and electronic means to facilitate and expedite interstate communications.11 The increased communication between the courts and parties will promote speedy and impartial resolutions of jurisdictional disputes. The UCCJEA, like its predecessor, the UCCJA, also permits a court to request a court in another state to assist in obtaining evidence to make a custody determination. Specifically, a court may request that the out-of-state court hold an evidentiary hearing, order a person to produce or give evidence, and/or order a custody evaluation. A court may also request that the out-of-state court forward a certified copy of a transcript of a hearing held in another state. Additionally, a court may order an out-of-state party to a custody proceeding or anyone having physical custody of a child to appear in person.12 |
|
Under the UCCJEA courts must enforce custody determinations made in substantial conformity with its jurisdictional standards. Enforcement applies to custody determinations and orders including temporary emergency orders, foreign custody orders if they do not violate fundamental principles of human rights,13 international orders to return a child if issued under the Hague Convention,14 tribal orders, and custody and visitation portions of orders for protection. Orders for support or other financial obligations are not covered.15 Practitioners should be aware that once the UCCJEA goes into effect in Minnesota, custody determinations commenced on or after January 1, 2000, which substantially conform with the jurisdictional standards of the UCCJA, but not with those of the UCCJEA, may not be enforceable in this state. For example, a determination made by a significant connection state, where the child had a home state at the time of the determination, will not be entitled to enforcement in Minnesota.16 The UCCJEA provides numerous tools to parties seeking to enforce custody or visitation provisions. The little-used child custody registry of the UCCJA has been replaced with a registration procedure that is easily accessible to pro se parties and which has the effect of confirming out-of-state orders as a matter of law. A party wishing to challenge the registration has 20 days from service to request a hearing and may assert one of the following defenses:
Registration has the advantages of determining in advance that an order will be enforced and of putting the court on notice of an existing order and the possible continuing jurisdiction of the issuing court.18 The UCCJEA has also created an expedited enforcement procedure for custody and visitation determinations. Once the petitioner has completed a petition, the court will issue an order directing the respondent to appear in person with or without the child. If possible, a hearing will be held on the next judicial day, after service of the order. In the order, the court has the authority to "enter any order necessary to ensure the safety of the parties and the child."19 In addition, the petitioner may file a verified application with the petition for a "warrant to take physical custody of the child if the child is immediately likely to suffer serious physical harm or be removed from the state."20 The warrant to take physical custody of the child is arguably a drastic measure, which could result in harmful effects on the child if used inappropriately. However, the risk of inappropriate use is substantially outweighed by the fact that use of the warrant may save the child from physical harm or death and from being wrongfully deprived of a relationship with a parent. Moreover, the risk of inappropriate use is minimal, given that such a warrant may issue only in the limited circumstance of the court finding that the physical harm or removal of the child is "imminently likely" to occur based upon the testimony of the petitioner and other witnesses.21 As a note to practitioners, in the event of an international parental kidnapping, The Hague Convention of the Civil Aspects of Child Abduction (The Hague Convention) and the International Parental Kidnapping Crime Act of 199322 (IPKCA) offer some additional assistance. The Hague Convention requires member states to return children who were unlawfully removed from their country of habitual residence. In theory, if the child were taken to a country that is a party to the Hague Convention, the country will recognize the custody decree of another member state and facilitate the return of the abducted child. The IPKCA makes international child abduction a federal felony, thereby creating a basis for extraditing the abducting parent from countries with which we have extradition treaties. In addition, the IPKCA may serve as a deterrent for potential abductors because it imposes criminal fines and/or imprisonment on anyone who removes a child from the United States unlawfully or unlawfully retains a child in a foreign country. The IPKCA also provides a basis for federal warrants, which may improve diplomatic efforts in negotiating with foreign governments.23 Lastly, the UCCJEA has defined the role of the prosecutor in enforcing child custody determinations arising under the UCCJEA or the Hague Convention. Under the new provisions, the prosecutor may employ law enforcement officers to carry out the mandates of the custody and visitation determinations or to assist in locating or protecting a child or party.24 The new enforcement provisions are a significant improvement from the UCCJA and PKPA, which provide little practical assistance in enforcing custody determinations and preventing parental child abductions. |
"once the UCCJEA goes into effect
in Minnesota, custody determinations commenced on or after January
1, 2000, which substantially conform with the jurisdictional
standards of the UCCJA, but not with those of the UCCJEA, may
not be enforceable in this state." |
