GENERAL ASSEMBLY ADOPTS UCCJEA TO REPLACE UCCJA

After tinkering with it for a number of years, the Virginia General Assembly finally was satisfied with its draft of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) ­p; a title which is something of a misnomer because at the last minute our legislators decided to leave out the enforcement part. That is because the Commonwealth's Attorneys of our State felt that the last thing they needed was a role in the enforcement of custody and visitation orders.

The UCCJEA does fix a number of shortcomings and perceived defects in the UCCJA. Repealing the UCCJA, §§20-125 ­p;- 146 and substituting a new §§20-146.1 --.38, it conforms our uniform state statute on the allocation of child custody jurisdiction between states and countries to the parallel provisions of the federal PKPA (28 U.S.C. §1738A) ­p; at least in a number of crucial areas.

For instance, the UCCJEA adopts the Parental Kidnapping Prevention Act (PKPA) rule of absolute priority of home state jurisdiction in matters of initial jurisdiction exercise. That means that when there has been no previous custody order issued by any court anywhere as to this child, only the "home state" of the child (essentially, the place the child has lived with a parent for the last six months, just as under the UCCJA) can make a custody order-- unless there is no home state. Thus there should be no situations of concurrent jurisdiction in different states, and no contest between a home state and a state that claims it has "significant connection" or "most evidence" jurisdiction, etc.

The UCCJEA also adopts (or intends to adopt) the PKPA's rigid rule on continuing jurisdiction in modification cases. In other words, if there is already a custody order from some other state, jurisdiction absolutely continues in the first-forum state unless and until everybody has moved away from that state. By giving Virginia and the U.S. the same rule in initial-determination cases and the same rule in modification cases, the UCCJEA will have the beneficial effect of mooting the offbeat precedent that the Court of Appeals set in Scott v. Rutherfoord, 30 Va. App. 176, 516 S.E.2d 225 (1999) (which put Virginia out on a precarious minority limb by holding that it is O.K. for a court in an initial-exercise case to disregard the federal PKPA and issue a custody decision that would be invalid under the PKPA and could be lawfully ignored by other states under PKPA standards.)

One definite improvement in the new statute: it makes it clear that when you appear to argue a jurisdictional issue, you are not making a "general appearance" and incurring "personal jurisdiction" and financial liability in the new state. (Yes, Virginia, we did have local judges holding otherwise.)

Another helpful revision embodied in the new uniform statute is one which makes it expressly clear that "emergency jurisdiction," which everyone admits is subject to more exploitation and creates more litigation than any other UCCJA provision, is only for the purpose of making temporary orders until the case can be sent back to the right state. Most states had held that that principle was clear under the UCCJA, but renegade judges in a few states were making permanent orders on the basis of UCCJA "emergency jurisdiction." The overwhelming majority view is now made express statutory law.

Also, the provision on application to international cases, which was there in our old UCCJA but very puzzlingly worded, is now reworked. It is now a simple declaration that the UCCJEA applies to cases involving other countries.

As explained in earlier articles in these pages, the UCCJEA was promulgated by the ABA-related National Conference of Commissioners on Uniform State Laws. The Commissioners' rewrite of the UCCJA was something of a mixed bag anyway, because it was drafted in open defiance of the drafting committee's mandate, which was to draft up a long-awaited visitation enforcement act. The Committee, being mostly professors, decided that what it would rather do was to recraft the whole UCCJA. Whether this was a good idea right when the whole country had the same uniform Act, and judges everywhere were finally beginning to understand and honor it, could be debated forever, but it won't be, because trial lawyers are practical people who look to the future for what works. The UCCJEA is now the law, and it is the law we will probably be living with for a fairly long time - at least until the child-abductors' lobby makes another major assault on it.