Child Custody Jurisdiction Under the UCCJEA: Navigating the - - PowerPoint PPT Presentation

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Child Custody Jurisdiction Under the UCCJEA: Navigating the Complexities

Determining Where to Initiate or Maintain a Custody Action and Leveraging Enforcement or Modification Remedies

T d ’ f l f

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific WEDNES DAY, OCTOBER 19, 2011

Today’s faculty features: Valerie D. Arnold, S hareholder, Arnold Rodman & Pletcher, Bloomington, Minn. Lisa A. Pletcher, S hareholder, Arnold Rodman & Pletcher, Bloomington, Minn. John T . Kelleher, Kelleher & Kelleher, Las Vegas

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Child Custody Jurisdiction Child Custody Jurisdiction Under the UCCJEA: N i ti th C l iti Navigating the Complexities

Presentation by: Valerie y Arnold, Lisa Pletcher and John Kelleher Materials prepared by: Valerie Arnold, Esq.

Jurisdiction and Enforcement

• Where should you file for an initial custody or parenting time

determination

• Where should you file to modify custody or parenting time
• Where should you file to modify custody or parenting time
• Whether an existing custody or parenting time order is

enforceable

• Mechanisms for enforcement of valid custody and parenting time
• rders

6

Types of Proceedings Types of Proceedings (UCCJEA.102)

• legal custody, physical custody, visitation
• permanent, temporary, initial, modification

pe a e t, te po a y, t a , od cat o

• Divorce, separation, neglect, abuse, dependency,

guardianship paternity TPR protection from guardianship, paternity, TPR, protection from domestic violence

• D

t i l d hild t j il

• Does not include child support, juvenile

delinquency, contractual emancipation, or enforcement proceedings under UCCJEA 301 et al enforcement proceedings under UCCJEA.301 et al,

• r adoption

7

Important Terms

• Child custody determination: judgment, decree, or order

providing for legal custody, physical custody, or visitation with respect to a child (includes permanent temporary with respect to a child (includes permanent, temporary, initial and modification)

• Commencement: the filing of the first pleading in a
• Commencement: the filing of the first pleading in a

proceeding

• Home state: where child lived with a parent for at least 6

p consecutive months prior to the commencement of the proceeding

• Initial determination: first child custody determination

concerning a child

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Important Terms cont.

• Person acting as a parent: has physical custody of the child or

has had physical custody for a period of six consecutive months, within one year immediately before the commencement of the proceeding

• State: U.S., District of Columbia, Puerto Rico, U.S. Virgin

Islands, or any territory or insular possession subject to the jurisdiction of the U S (See UCCJEA 105 state “shall treat jurisdiction of the U.S. (See UCCJEA.105 state shall treat foreign country as if it were a state” for purposes of UCCJEA.101 to UCCJEA.210)

• Tribe: Indian tribe or band, or Alaskan native village, which is

recognized by federal law or formally acknowledged by a state

• W

t d i d b t th i i l f t

• Warrant: order issued by a court authorizing law enforcement
• fficers to take physical custody of a child

9

General Principles

• Clarity in determining which court has jurisdiction to make a

custody determination;

• Clarity in determining which court orders are entitled to be
• Clarity in determining which court orders are entitled to be

enforced;

• Deterring parental child abductions
• Interstate respect of custody determinations
• Better certainty of outcomes
• Efficient and cost-effective enforcement remedies

10

Applicable Law

• Uniform Child-Custody Jurisdiction and Enforcement Act

(UCCJEA)

• 49 states DC Guam and U S Virgin Islands
• 49 states, DC, Guam and U.S. Virgin Islands
• 2011 Introductions – Massachusetts
• Parental Kidnapping and Prevention Act as amended by the

Parental Kidnapping and Prevention Act as amended by the Visitation Rights Enforcement Act (PKPA)

• Hague Convention on the Civil Aspects of International Child

Abd ti (H C ti ) Abduction (Hague Convention)

• International Child Abductions Remedy Act

11

Jurisdiction Jurisdiction

• Subject Matter Jurisdiction
• Subject Matter Jurisdiction
• Personal Jurisdiction
• Long-Arm Jurisdiction over Nonresidents:
• Owns, uses, or possesses real or personal

property located in the State;

• Transacts any business in the state;

Transacts any business in the state;

• Commits any act in the state causing injury or

property damage;

• Commits any act outside of the state causing
• Commits any act outside of the state causing

injury or property damage in the state, subject to some exceptions

12

UCCJEA UCCJEA

Jurisdiction in Initial Custody Determinations: Jurisdiction in Initial Custody Determinations:

• Home State Jurisdiction
• Significant Connection Jurisdiction

Significant Connection Jurisdiction

• Emergency Jurisdiction
• Default Jurisdiction
• More Appropriate Forum

13

Required Information Required Information (UCCJEA 209) (UCCJEA 209) (UCCJEA.209) (UCCJEA.209)

• Where the child has lived the past 5 years and

i h h with whom

• Whether party has participate as a party or

witness in another custody proceeding y p g

• Whether the party is aware of another related

proceeding

• Whether another party has custody of the
• Whether another party has custody of the

child or claims rights of custody

• Exceptions in cases of domestic abuse

14

Home State Jurisdiction

Thi St t i th h St t f th hild th d t f th This State is the home State of the child on the date of the commencement of the proceeding, or was the home State

• f the child within six months before the commencement
• f the proceeding and the child is absent from this State

but a parent or person acting as a parent continues to live in the state. in the state. The “home state” is defined as the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding commencement of a child custody proceeding.

15

Significant Connection Jurisdiction The child and the child’s parents or the – The child and the child s parents, or the child and at least one parent or person acting as parent have a significant acting as parent, have a significant connection with this state other than a mere physical presence; and mere physical presence; and – substantial evidence is available in this t t i th hild’ state concerning the child’s care, protection, training, and personal l ti hi relationships.

16

Emergency Jurisdiction The child is physically present in the state; and and – (1) the child has been abandoned; or – (2) it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.

17

Default (Vacuum) Jurisdiction Default jurisdiction may be asserted where Default jurisdiction may be asserted where no other state could accept jurisdiction under home state significant connection or under home state, significant connection or more appropriate forum jurisdiction, or an eligible state has declined to exercise eligible state has declined to exercise jurisdiction.

18

More Appropriate Forum All t h i ith h t t All courts having either home state or significant connection jurisdiction have d li d t i j i di ti th declined to exercise jurisdiction on the ground that a court of this state is a more i t t b d appropriate court based upon an inconvenient forum analysis or on grounds f i d t S UCCJEA 207 d

• f

misconduct. See UCCJEA.207 and UCCJEA.208.

19

Inconvenient Forum (UCCJEA.207)

• Wh h

d i i l h d d i lik l

• Whether domestic violence has occurred and is likely to

continue in the future and which state could best protect the parent/child p

• The length of the time child has resided outside of the state
• The distance between the courts
• The relative financial circumstances of the parties
• Any

agreement as to which state should assume jurisdiction jurisdiction

• Nature and location of evidence
• Ability of the court to decide the case expeditiously and
• Ability of the court to decide the case expeditiously and

the familiarity of the court with the facts and issues

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Declined by Reason of Conduct (UCCJEA.208)

• Whether a party seeking to invoke the jurisdiction of the

h d i j ifi bl d court has engaged in unjustifiable conduct

• Exceptions:
• Agreement of the parties;

Agreement of the parties;

• Another state has made a more appropriate forum determination;
• No other court would have jurisdiction

21

MODIFICATION JURISDICTION

Exclusive Continuing Jurisdiction

• The

UCCJEA provides for exclusive continuing jurisdiction in conformity with the PKPA as a first basis for modification jurisdiction for modification jurisdiction.

• If no state has exclusive continuing jurisdiction, then the

i i i l hild d hi h h ld b f ll d initial child custody hierarchy should be followed to determine jurisdiction.

22

MODIFICATION JURISDICTION

Exclusive Continuing Jurisdiction g

A court shall have exclusive continuing jurisdiction until: – a court of this state determines that the child, the ’ child’s parents, and any person acting as a parent do not have a significant connection with this state and that substantial evidence is no longer available in this state ’ concerning the child’s care, protection, training, and personal relationships; or – a court of this state or a court of another state determines that the child, the child’s parents and any person acting as a parent do not presently reside in this state.

23

MODIFICATION JURISDICTION

Exclusive Continuing Jurisdiction

• Exclusive continuing jurisdiction may be overridden by an

assertion of emergency jurisdiction, if only on a temporary basis basis.

• Exclusive

continuing jurisdiction trumps home state j i di i l h i h l i i i jurisdiction unless the state with exclusive continuing jurisdiction declines jurisdiction.

24

Consideration of Hague Convention in determining jurisdiction Place of Habitual Residence: The Hague Convention does not define a child’s habitual Convention does not define a child s habitual residence except to provide that it is the place where the child resided habitually at the time y “immediately before the removal or retention.”

25

• the concept of “habitual residence” is distinct

from the concept of domicile and the UCCJEA’s “ ” definition of “home state.”

• In determining the child’s place of habitual

id h id h hild residence, the court must consider that a child can have only one habitual residence and that the habitual residence must encompass some form of habitual residence must encompass some form of settled purpose.

• This “settled purposed must be from the child’s
• This

settled purposed must be from the child s perspective, although parental intent is also taken into account.”

Silverman v. Silverman, 338 F. 3d 866 (U.S. 8th Ct. App. 2003)

26

Simultaneous Proceedings

• Stay of Proceedings

(UCCJEA.206/UCCJEA.307) ( )

• Communication between the Courts

(UCCJEA 110) (UCCJEA.110)

• Arguments for exercising jurisdiction

(UCCJEA 207) (UCCJEA.207)

• First filing

27

Enforcement

• Applied to int’l determinations if made in

substantial conformity with jurisdictional y j standards (UCCJEA.105)

• Does not apply if child custody law violates

Does not apply if child custody law violates fundamental principles of human rights

• Applies to Hague Order for return of a child
• Applies to Hague Order for return of a child

(UCCJEA.302)

28

Registration under UCCJEA

1.A letter or other document requesting registration 2.Two copies, including one certified of the determination sought to be registered and a statement under penalty of perjury sought to be registered, and a statement under penalty of perjury that to the best of the knowledge and belief of the party the order has not been modified 3.The name and address of the person seeking registration and any parent or person acting as parent who has been awarded custody or visitation (unless disclosure of an address would custody or visitation (unless disclosure of an address would jeopardize the health, safety or liberty of the party or child)

29

Doctrine of Comity

A court may recognize and enforce the judgment of a foreign state under the A court may recognize and enforce the judgment of a foreign state under the doctrine of comity if reasonable notice and opportunity to be heard were afforded, and if other requirements of basic fairness were met. Nicol v. Tanner, 310 Minn. 68, 78, 256 N.W.2d 796, 802 (Minn. 1976). Reasons for finding that comity should not be accorded may be based upon lack of jurisdiction, notice,

• pportunity to participate or fraud. Nicol v. Tanner, at 77-78, 801-2 (citations
• mitted).

A state may recognize a foreign marriage if it is valid under the law of the place where the marriage is contracted. See Ma. v. Ma, 483 N.W.2d 732, 735 (citing Laikola v. Engineered Concrete, 277 N.W.2d. 53, 65-45 (Minn. 1979)(citation

• mitted)). Similarly, courts must accord comity to a customary divorce

performed in a foreign country if it is valid under the law of the place where the divorce is contracted. See e.g., T.T. v. K.A., No. xx08 (N.Y.S. June 18, 2008).

• Petition with certified copy of foreign determination

with certified translation

30

ENFORCEMENT OF CHILD CUSTODY DETERMINATIONS

Expedited enforcement of an existing custody/parenting time determination

31

Expedited Enforcement of a Child Expedited Enforcement of a Child C t d D t i ti C t d D t i ti Custody Determination Custody Determination

• Jurisdictional basis for issuing court

Jurisdictional basis for issuing court’s exercise of jurisdiction s exercise of jurisdiction

• Jurisdictional basis for issuing court

Jurisdictional basis for issuing court s exercise of jurisdiction s exercise of jurisdiction

• Whether the determination sought to be enforced has been

Whether the determination sought to be enforced has been vacated, stayed or modified vacated, stayed or modified Wh th th i i lt di th t ld ff t th Wh th th i i lt di th t ld ff t th

• Whether there is a simultaneous proceeding that could affect the

Whether there is a simultaneous proceeding that could affect the current enforcement proceeding current enforcement proceeding

• The physical address of the child and the respondent, if known

The physical address of the child and the respondent, if known Wh th th li f i dditi t th i di t h i l t d Wh th th li f i dditi t th i di t h i l t d

• Whether the relief, in addition to the immediate physical custody

Whether the relief, in addition to the immediate physical custody

• f the child and fees is sought, including requests for assistance
• f the child and fees is sought, including requests for assistance

from law enforcement from law enforcement h h h hild d d i i h b i d i h h h hild d d i i h b i d i

• Whether the child custody determination has been registered in

Whether the child custody determination has been registered in the enforcing state the enforcing state

32

INTERSTATE ENFORCEMENT OF CHILD- CUSTODY DETERMINATIONS

Warrant to take physical custody of a child in case of risk of immediate physical harm or threat of abduction

33

Warrant to Take Physical Custody of a Child Warrant to Take Physical Custody of a Child

Th A li i f W T k Ph i l C d f Child b Th A li i f W T k Ph i l C d f Child b The Application for a Warrant to Take Physical Custody of a Child must be The Application for a Warrant to Take Physical Custody of a Child must be verified and contain the following verified and contain the following:

:

• Jurisdictional basis for the exercise of jurisdiction

Jurisdictional basis for the exercise of jurisdiction

• Whether the determination has been vacated, stayed or modified

Whether the determination has been vacated, stayed or modified

• Whether there is a simultaneous proceeding that could affect the current

Whether there is a simultaneous proceeding that could affect the current proceeding proceeding

• The physical address of the child and the respondent, if known

The physical address of the child and the respondent, if known

• Whether the relief, in addition to the immediate physical custody of the

Whether the relief, in addition to the immediate physical custody of the hild d f i h i l di f i f l hild d f i h i l di f i f l child and fees is sought, including requests for assistance from law child and fees is sought, including requests for assistance from law enforcement enforcement

• Whether the determination has been registered in the enforcing state

Whether the determination has been registered in the enforcing state

34

Warrant to Take Physical Custody of a Child Warrant to Take Physical Custody of a Child Warrant to Take Physical Custody of a Child Warrant to Take Physical Custody of a Child

The Warrant to Take Physical Custody of a Child must The Warrant to Take Physical Custody of a Child must :

:

The Warrant to Take Physical Custody of a Child must The Warrant to Take Physical Custody of a Child must :

:

• Recite the facts upon which a conclusion of imminent serious physical

Recite the facts upon which a conclusion of imminent serious physical harm or removal from the jurisdiction is based harm or removal from the jurisdiction is based harm or removal from the jurisdiction is based harm or removal from the jurisdiction is based

• Direct law enforcement officers to take physical custody of the child

Direct law enforcement officers to take physical custody of the child immediately immediately

• Provide for the placement of the child pending final relief.

Provide for the placement of the child pending final relief. p p g p p g

• The Respondent must be served with the petition, warrant, and order

The Respondent must be served with the petition, warrant, and order immediately after the child is taken into physical custody. immediately after the child is taken into physical custody.

35

Child Custody Orders

• Define custody designations
• Obtain sole custody if possible
• Provide a detailed parent access schedule that can

be easily interpreted and enforced

• Require separate certified court order for a parent

to travel across state or international lines R i h f h hild d/

• Require that passports for the child and/or parents

be held during parenting time R i b d f ti ti

• Require bond for parenting time

36

Steps in Recovering an Abducted Child:

• Contact law enforcement in the state from which the child was

Contact law enforcement in the state from which the child was abducted

• Contact the National Center for Missing and Exploited Children
• Obtain an emergency custody order/warrant from the state from

which the child was taken

• Contact an attorney in the country where the child is believed to

y y be located (the Central Authority in the foreign state may provide one at no charge)

• File an application for the return of the child under the Hague

File an application for the return of the child under the Hague Convention

• Obtain a Certificate of Wrongfulness under Article 15 of the

H C ti f th t t f hi h th hild Hague Convention from the state from which the child was abducted, if appropriate

37

Valerie Arnold 952-955-8008 l f il l val@arpfamilylaw.com Lisa Pletcher Lisa Pletcher 952-955-8008 lisa@arpfamilylaw.com John Kelleher 702-384-7494 klea@kelleherandkelleher.com

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