Where Do I Turn Now for Jurisdiction?

This scenario is authorized by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This is a model law that has been adopted in 49 of the 50 states (Massachusetts has not adopted it) plus Washington, DC, and the Virgin Islands. It is designed to promote cooperation among courts with regard to jurisdiction over and enforcement of child custody proceedings. The UCCJEA is divided into four Articles: Article 1 (General Provisions; Sections 101 ' 112), Article 2 (Jurisdiction; Sections 201 ' 210), Article 3 (Enforcement; Sections 301 ' 317), and Article 4 (Miscellaneous Provisions; Sections 401 ' 405).

About two years before the incident described above, the boy's mother had filed for divorce from the father. The mother and father were both from Mexico and were working as migrant farm workers, traveling up and down the Eastern Seaboard following the ripening fruit. At that time, it was mid-summer and the mother was in New Jersey picking blueberries. The father and son had stayed behind in Florida so the father could finish picking oranges. In fact, since before the child was born, the family had followed the same route each year, picking oranges in Florida, then blueberries in New Jersey, tobacco in North Carolina, and, finally, apples in Pennsylvania.

Because the mother had sought help with the divorce from the local legal aid office, she properly filed the affidavit required by the UCCJEA. Section 209. The New Jersey court then determined that it could hear the case under what has been called “vacuum” jurisdiction. Section 201. Essentially, because no other states had initial child-custody jurisdiction under the UCCJEA, the New Jersey court was permitted to accept jurisdiction.

Neither the father nor the child were present in New Jersey when the mother filed for divorce, and she was concerned that the New Jersey court would not have jurisdiction to make an initial child-custody determination. The legal aid attorneys explained to her, however, that physical presence in a state is neither sufficient nor necessary for a court to have jurisdiction under the UCCJEA. Section 201(c). Unfortunately, because of the family's constant moves, the child never developed a “home state” for UCCJEA purposes, which is to say that he never lived in one state for at least six consecutive months. Section 102(7).

This constant moving also meant that neither the child nor the parents developed a significant connection to any state. Section 201(a)(2). This lack of a home state and lack of significant connections to any particular state at that time is what eventually led to the New Jersey court's “vacuum” jurisdiction.

Immediately after being served with the mother's New Jersey divorce paperwork, the father also filed for divorce in Florida. Although he knew that he and the child would soon be heading to New Jersey for the blueberry season, he wanted to get the divorce completed in Florida before the move. Like the mother, the father properly filed the required UCCJEA affidavit, which alerted the Florida court to the pending New Jersey case and to the jurisdictional issue to be resolved. Although the Florida judge was tempted to just pick up the phone and call the New Jersey judge, she elected to instead coordinate a hearing during which the courts would discuss the matter by Skype videoconference and allow the parties to participate in the same manner. The UCCJEA permits, but does not require, courts to allow parties to participate in the courts' discussions regarding jurisdiction. Section 110. As required, a record of the proceedings was kept, in this case by digitally recording the Skype videoconference since a court reporter was not present in either courtroom. Section 110(d), (e).

After the father testified that he was, in fact, getting ready to head to New Jersey with the child, the Florida court recognized that it did not have jurisdiction under the
UCCJEA. At the same time, the New Jersey court recognized that it could accept jurisdiction because no other state had jurisdiction. Although New Jersey was not the child's home state, and neither the child nor the parents had a significant connection with New Jersey at this point (the father's aunt and uncle lived in New York at this time and the entire family was still moving regularly), New Jersey was still the best option. Section 201(a)(4). The New Jersey court finalized the divorce a short time later.

Custody Determination

As the mother settled into a new post-divorce routine, she met a friend with whom she and the child traveled from state to state. Her friend had previously been through an ordeal with an abusive ex-husband and a custody dispute. Learning from her friend's mistakes, the mother registered the New Jersey child-custody determination in each state where she resided. Section 305. Although she was initially intimidated by the clerks' offices, the mother quickly learned the relatively simple registration procedure. She kept certified copies of the child-custody determination (as modified) with her as she moved from state to state so that she could easily submit them to the local clerk for filing as a foreign judgment. She always made sure to provide the clerk with the father's correct address so that the clerk could send him notice of the recording.

Of course, the father never challenged these registrations, which meant that the child-custody determination was confirmed as a matter of law and could be enforced by the local courts. Sections 305 ' 306. The father could not have succeeded on a challenge to the registration even if he had tried, because the New Jersey court had jurisdiction under the UCCJEA when it made the child-custody determination; the father had received notice of the New Jersey proceedings, and the child-custody determination was still in effect, i.e., it had not been stayed or vacated (although it had been modified). Section 308(d)(2).

The modification of the original child-custody determination had occurred about a year before the warrant was issued. The father had come to Pennsylvania to visit with the child as permitted by the initial child-custody determination. While he was there, the father physically abused the mother. Unfortunately, the child witnessed the abuse and received a minor injury during the altercation. This abuse caused the mother to seek modification of the initial child-custody determination to limit the father's visitation with the child. The mother sought this modification in the Pennsylvania courts because she and the child were there for the apple-picking season.

By the time the mother got around to actually filing for the modification several months later, the father had returned to New Jersey, where the initial child-custody determination had been made. However, when the mother provided the father notice of the modification proceedings, he sought to have the Pennsylvania proceedings dismissed on the grounds that he and their son still had “significant connections” to New Jersey. Section 202.

The father at this time was no longer working as a migrant laborer. Instead, he was working odd jobs and living with his aunt and uncle ' the same people who had sometimes housed the father, mother, and child when they were in New Jersey picking blueberries each year.

Because the Pennsylvania court was not permitted to make the determination as to whether the child or a parent still had significant connections with New Jersey (only the New Jersey court could make that determination), the Pennsylvania court dismissed the mother's modification petition without prejudice to her re-filing if New Jersey declined jurisdiction. The Pennsylvania court also declined to accept temporary emergency jurisdiction because it had been many months since the incident. Section 204.

The New Jersey court ultimately concluded that the family had significant connections with New Jersey because the father still lived there, and his aunt and uncle (the child's only other family in the United States) spoke regularly with, visited, and financially supported the mother and child. Therefore, New Jersey maintained “continuing jurisdiction” over the matter. Section 202.

The mother was relieved when the New Jersey court nonetheless granted her modification petition, making her the primary residential parent and awarding the father only limited and supervised visitation. It was this modification that infuriated the father and ultimately led to his taking the child from the mother and going to North Carolina in violation of the modified child-custody determination.'

The Warrant

Just a day or two after the father took the boy, the mother had learned by text message from a friend in Mexico that the father was staying near Durham, NC, and was making arrangements to immediately return to Mexico with their son. That same day, the mother had learned from the father's aunt and uncle in New Jersey that he had bought two plane tickets to Mexico. When she heard this, she remembered that when the father took the child, he had ransacked her car looking for their son's passport (and found it).

The mother, who was still in Pennsylvania at that time, immediately sought legal assistance. The local legal aid office helped her file in North Carolina for expedited enforcement of a child-custody determination. Section 308. In her verified filing for enforcement, the mother made sure to include the required information. The mother also filed a verified application for a Warrant to Take Physical Custody of Child, in which she described the basis for her belief that the father would remove the child from the country if not immediately stopped. Section 311. These filings and the mother's testimony by phone permitted the court to issue the warrant, because it showed that the child was “immediately likely to suffer serious physical harm or be removed from this State.”

The father's instincts with regard to his right to a hearing would usually have been correct because the UCCJEA generally requires notice to a respondent before a child-custody determination may be enforced. Sections 308 (c), (d). However, because the mother in this case successfully sought the warrant, she invoked the one instance where pre-notice is not required. Section 311. Nonetheless, the father had to be served with the warrant immediately after it was executed and the subsequent hearing had to be held the next day unless that was “impossible,” in which case it had to be held on the next possible judicial day. Although the UCCJEA does not define a “judicial day,” the comments to Section 308 state that the next judicial day is the “next day when a judge is at the courthouse.”'

Even though the child-custody determination had been made in New Jersey, the UCCJEA obligated the North Carolina court to “recognize and enforce” the child-custody determination. Section 303. At the hearing, because the father was unable to show that the child-custody determination being enforced had been vacated, stayed, or modified (his only available defenses since the mother had registered the child-custody determination), the court entered an order returning the child to the mother and ordering the father to pay the expenses she had incurred. Sections 310, 312.

Conclusion

As the above discussion illustrates, the UCCJEA can be a powerful tool when used properly and under the right circumstances. It is important to note, however, that there are many useful provisions of the model UCCJEA that could not be covered by this article, and that this article is based on the model UCCJEA without reference to any particular state's modifications.

Rebecca Palmer, a member of this newsletter's Board of Editors, leads the Family & Marital Law practice at Lowndes, Drosdick, Doster, Kantor & Reed, P.A. Orlando, FL. She has a broad background in providing alternative dispute resolution, general litigation, and collaborative law issues for domestic disputes. Kristopher Kest is a senior associate in the firm's Litigation and eDiscovery practices.

A father and his four-year-old son are walking out of the father's house in a small town in North Carolina. The father has his suitcase in his right hand and two passports clutched between his fingers. With his other hand he pulls his son along, who is in turn pulling his own small wheeled suitcase behind him. Suddenly, two sheriff's deputies approach the pair and inform the father (quietly, so his son does not hear) that, although he is not under arrest, his son is being removed from him and placed in the state's care pending a hearing regarding the custody dispute between him and his ex-wife.

The father protests, knowing that his ex-wife does not live in North Carolina, that the most recent child-custody determination was entered by a New Jersey court, and believing that he must be entitled to a hearing before his son can be removed from him. The deputies then serve the father with a Warrant to Take Physical Custody of a Child, and secure the child into a car seat. As they are driving away, the father yells after them, asking where his son will be. The deputies tell him that the information is on the warrant. When the father reads the warrant, he sees a reference to the Uniform Child Custody Jurisdiction and Enforcement Act. The father also sees that a hearing is set for the next day and that, to his dismay, he will have to pay his ex-wife's attorney's fees, travel expenses, and child care costs if he loses.

Jurisdiction

This scenario is authorized by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This is a model law that has been adopted in 49 of the 50 states (Massachusetts has not adopted it) plus Washington, DC, and the Virgin Islands. It is designed to promote cooperation among courts with regard to jurisdiction over and enforcement of child custody proceedings. The UCCJEA is divided into four Articles: Article 1 (General Provisions; Sections 101 ' 112), Article 2 (Jurisdiction; Sections 201 ' 210), Article 3 (Enforcement; Sections 301 ' 317), and Article 4 (Miscellaneous Provisions; Sections 401 ' 405).

About two years before the incident described above, the boy's mother had filed for divorce from the father. The mother and father were both from Mexico and were working as migrant farm workers, traveling up and down the Eastern Seaboard following the ripening fruit. At that time, it was mid-summer and the mother was in New Jersey picking blueberries. The father and son had stayed behind in Florida so the father could finish picking oranges. In fact, since before the child was born, the family had followed the same route each year, picking oranges in Florida, then blueberries in New Jersey, tobacco in North Carolina, and, finally, apples in Pennsylvania.

Because the mother had sought help with the divorce from the local legal aid office, she properly filed the affidavit required by the UCCJEA. Section 209. The New Jersey court then determined that it could hear the case under what has been called “vacuum” jurisdiction. Section 201. Essentially, because no other states had initial child-custody jurisdiction under the UCCJEA, the New Jersey court was permitted to accept jurisdiction.

Neither the father nor the child were present in New Jersey when the mother filed for divorce, and she was concerned that the New Jersey court would not have jurisdiction to make an initial child-custody determination. The legal aid attorneys explained to her, however, that physical presence in a state is neither sufficient nor necessary for a court to have jurisdiction under the UCCJEA. Section 201(c). Unfortunately, because of the family's constant moves, the child never developed a “home state” for UCCJEA purposes, which is to say that he never lived in one state for at least six consecutive months. Section 102(7).

This constant moving also meant that neither the child nor the parents developed a significant connection to any state. Section 201(a)(2). This lack of a home state and lack of significant connections to any particular state at that time is what eventually led to the New Jersey court's “vacuum” jurisdiction.

Immediately after being served with the mother's New Jersey divorce paperwork, the father also filed for divorce in Florida. Although he knew that he and the child would soon be heading to New Jersey for the blueberry season, he wanted to get the divorce completed in Florida before the move. Like the mother, the father properly filed the required UCCJEA affidavit, which alerted the Florida court to the pending New Jersey case and to the jurisdictional issue to be resolved. Although the Florida judge was tempted to just pick up the phone and call the New Jersey judge, she elected to instead coordinate a hearing during which the courts would discuss the matter by Skype videoconference and allow the parties to participate in the same manner. The UCCJEA permits, but does not require, courts to allow parties to participate in the courts' discussions regarding jurisdiction. Section 110. As required, a record of the proceedings was kept, in this case by digitally recording the Skype videoconference since a court reporter was not present in either courtroom. Section 110(d), (e).

After the father testified that he was, in fact, getting ready to head to New Jersey with the child, the Florida court recognized that it did not have jurisdiction under the
UCCJEA. At the same time, the New Jersey court recognized that it could accept jurisdiction because no other state had jurisdiction. Although New Jersey was not the child's home state, and neither the child nor the parents had a significant connection with New Jersey at this point (the father's aunt and uncle lived in New York at this time and the entire family was still moving regularly), New Jersey was still the best option. Section 201(a)(4). The New Jersey court finalized the divorce a short time later.

Custody Determination

As the mother settled into a new post-divorce routine, she met a friend with whom she and the child traveled from state to state. Her friend had previously been through an ordeal with an abusive ex-husband and a custody dispute. Learning from her friend's mistakes, the mother registered the New Jersey child-custody determination in each state where she resided. Section 305. Although she was initially intimidated by the clerks' offices, the mother quickly learned the relatively simple registration procedure. She kept certified copies of the child-custody determination (as modified) with her as she moved from state to state so that she could easily submit them to the local clerk for filing as a foreign judgment. She always made sure to provide the clerk with the father's correct address so that the clerk could send him notice of the recording.

Of course, the father never challenged these registrations, which meant that the child-custody determination was confirmed as a matter of law and could be enforced by the local courts. Sections 305 ' 306. The father could not have succeeded on a challenge to the registration even if he had tried, because the New Jersey court had jurisdiction under the UCCJEA when it made the child-custody determination; the father had received notice of the New Jersey proceedings, and the child-custody determination was still in effect, i.e., it had not been stayed or vacated (although it had been modified). Section 308(d)(2).

The modification of the original child-custody determination had occurred about a year before the warrant was issued. The father had come to Pennsylvania to visit with the child as permitted by the initial child-custody determination. While he was there, the father physically abused the mother. Unfortunately, the child witnessed the abuse and received a minor injury during the altercation. This abuse caused the mother to seek modification of the initial child-custody determination to limit the father's visitation with the child. The mother sought this modification in the Pennsylvania courts because she and the child were there for the apple-picking season.

By the time the mother got around to actually filing for the modification several months later, the father had returned to New Jersey, where the initial child-custody determination had been made. However, when the mother provided the father notice of the modification proceedings, he sought to have the Pennsylvania proceedings dismissed on the grounds that he and their son still had “significant connections” to New Jersey. Section 202.

The father at this time was no longer working as a migrant laborer. Instead, he was working odd jobs and living with his aunt and uncle ' the same people who had sometimes housed the father, mother, and child when they were in New Jersey picking blueberries each year.

Because the Pennsylvania court was not permitted to make the determination as to whether the child or a parent still had significant connections with New Jersey (only the New Jersey court could make that determination), the Pennsylvania court dismissed the mother's modification petition without prejudice to her re-filing if New Jersey declined jurisdiction. The Pennsylvania court also declined to accept temporary emergency jurisdiction because it had been many months since the incident. Section 204.

The New Jersey court ultimately concluded that the family had significant connections with New Jersey because the father still lived there, and his aunt and uncle (the child's only other family in the United States) spoke regularly with, visited, and financially supported the mother and child. Therefore, New Jersey maintained “continuing jurisdiction” over the matter. Section 202.

The mother was relieved when the New Jersey court nonetheless granted her modification petition, making her the primary residential parent and awarding the father only limited and supervised visitation. It was this modification that infuriated the father and ultimately led to his taking the child from the mother and going to North Carolina in violation of the modified child-custody determination.'

The Warrant

Just a day or two after the father took the boy, the mother had learned by text message from a friend in Mexico that the father was staying near Durham, NC, and was making arrangements to immediately return to Mexico with their son. That same day, the mother had learned from the father's aunt and uncle in New Jersey that he had bought two plane tickets to Mexico. When she heard this, she remembered that when the father took the child, he had ransacked her car looking for their son's passport (and found it).

The mother, who was still in Pennsylvania at that time, immediately sought legal assistance. The local legal aid office helped her file in North Carolina for expedited enforcement of a child-custody determination. Section 308. In her verified filing for enforcement, the mother made sure to include the required information. The mother also filed a verified application for a Warrant to Take Physical Custody of Child, in which she described the basis for her belief that the father would remove the child from the country if not immediately stopped. Section 311. These filings and the mother's testimony by phone permitted the court to issue the warrant, because it showed that the child was “immediately likely to suffer serious physical harm or be removed from this State.”

The father's instincts with regard to his right to a hearing would usually have been correct because the UCCJEA generally requires notice to a respondent before a child-custody determination may be enforced. Sections 308 (c), (d). However, because the mother in this case successfully sought the warrant, she invoked the one instance where pre-notice is not required. Section 311. Nonetheless, the father had to be served with the warrant immediately after it was executed and the subsequent hearing had to be held the next day unless that was “impossible,” in which case it had to be held on the next possible judicial day. Although the UCCJEA does not define a “judicial day,” the comments to Section 308 state that the next judicial day is the “next day when a judge is at the courthouse.”'

Even though the child-custody determination had been made in New Jersey, the UCCJEA obligated the North Carolina court to “recognize and enforce” the child-custody determination. Section 303. At the hearing, because the father was unable to show that the child-custody determination being enforced had been vacated, stayed, or modified (his only available defenses since the mother had registered the child-custody determination), the court entered an order returning the child to the mother and ordering the father to pay the expenses she had incurred. Sections 310, 312.

Conclusion

As the above discussion illustrates, the UCCJEA can be a powerful tool when used properly and under the right circumstances. It is important to note, however, that there are many useful provisions of the model UCCJEA that could not be covered by this article, and that this article is based on the model UCCJEA without reference to any particular state's modifications.

Rebecca Palmer, a member of this newsletter's Board of Editors, leads the Family & Marital Law practice at Lowndes, Drosdick, Doster, Kantor & Reed, P.A. Orlando, FL. She has a broad background in providing alternative dispute resolution, general litigation, and collaborative law issues for domestic disputes. Kristopher Kest is a senior associate in the firm's Litigation and eDiscovery practices.