America is an extremely mobile nation, and it is a common occurrence for divorced parents is an attempt to relocate to a different area with their child or children. Thus, it is no surprise that parental relocation is one of the main reasons that parents seek modification of support and modification of custody after a divorce. If there is a need to modify the custody order, in which state can that modification take place?
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) was enacted to create uniformity in determining which court in which state is the appropriate one to make decisions regarding child custody and child visitation, and has been codified into California law as Sections 3400-3465 of the California Family Code. It is important to note that the UCCJEA specifies which court should decide a child custody case, not how the court should decide the case.
Scope of UCCJEA Jurisdiction
The UCCJEA applies in all “child custody proceedings,” meaning any proceeding in which legal custody, physical custody, or visitation with respect to a child is at issue. The UCCJEA does not apply in adoption, juvenile delinquency, contractual emancipation, or emergency medical care proceeding. However, under the UCCJEA a child custody determination made by a foreign country must be recognized and enforced by a U.S. court.
Determining Which State Has Initial Jurisdiction
The UCCJEA provides a priority hierarchy of four principles, or bases, for taking jurisdiction over initial child custody determinations. A particular state’s court is empowered to determine child custody matters only if one of these for tests is met.
The four tests, in order of priority, are: 1) the child’s “home state,” 2) a “significant connection” between state and parties to a child custody dispute, 3) “emergency” jurisdiction when the child is present and the child’s welfare is threatened, and 4) presence of the child in the event there is no other state with another sound basis for taking jurisdiction.
A state is considered the child’s “home state” if it is either the state where the child lived for at least six consecutive months immediately prior to commencement of the proceedings, or if the child no longer lives in the state, it was the state where the child lived within six months before commencement of the proceedings and a parent still lives in the state. If no state is the child’s home state or the home state declines jurisdiction, the second test for UCCJEA provides for jurisdiction in state where the child and at least one parent have a significant connection. A significant connection requires more than just mere presence, such as the residence of relatives and the child’s best interests. In situations where the child has been left without reasonable care or supervision, or where the child is subjected to abuse, a state where the child lives may exercise “emergency” jurisdiction under the third test to issue temporary orders relating to custody matters.
Finally, the fourth test for UCCJEA jurisdiction is the “default test” if no court of any other state would have jurisdiction under the first three tests. For example, if a court in California determines that Arizona has “significant connections” under the second test, a California court could not exercise jurisdiction over the custody or visitation matter under the fourth test.
Modification of UCCJEA Jurisdiction
Frequently, a parent will seek to modify a custody order in a different state than the court which rendered the initial custody order. Once UCCJEA jurisdiction attaches to an initial custody matter in one state, it has exclusive and continuing jurisdiction to hear all subsequent matters relating to custody or visitation matters in that case, and deference will be given to that order. However, a court in another state can modify the original state’s court’s order only if: 1) the proposed state has jurisdiction under “home state” or “significant connection” jurisdiction tests, and 2) either the original state’s court determines it no longer has exclusive, continuing jurisdiction or the proposed state would be a “more convenient forum,” or the original state’s court or the proposed state’s court determines that neither the child nor either parent lives in the other state.
If you are in the midst of a case involving child custody, visitation, or any other family law issue where a recent interstate move has occurred, understanding the UCCJEA is crucial. The San Diego, CA family law attorneys at Boyd Law have significant experience in this practice area, and are committed to helping every client face his or her family-related legal matter head on.
