Legislatures Consider Replacing UCCJA With UCCJEA

UCCJEA Section 102 -- DEFINITIONS

Article by Richard Crouch, Attorney at Law, Crouch & Crouch, Arlington, Virginia; (703) 528-6700;
Copyright Richard Crouch 1999. Originally Published in Family Law News, a Virginia
State Bar Publication

Table of Contents of UCCJA Article | Introduction

Proposed §146.1 (UCCJEA SECTION 102) DEFINITIONS. Subsection (4), defining a child-custody proceeding, drags in the custody-related orders which come down in "domestic violence" cases. This is worthy of some careful thought, because so many of these orders are granted ex parte, or with truly minimal notice, with much prejudice in an atmosphere of emotional turmoil, and often no opportunity to be heard, even when the alleged offender is present. Some dire consequences are foreseeable here.

The redefinition of "abandoned" is very unwise. There is no excuse for starting over in the matter of legal definitions as though the ordinary English dictionary definition did not exist. Much mischief could very easily flow from the tactical exploitation of "emergency jurisdiction" using this irresponsibly expanded definition of the concept of abandonment. This would allow it to mean all things to all people and be found in a huge number of cases, when actually the intent of the drafters of the UCCJA, and I presume the new statute as well, is to keep emergency jurisdiction to a minimum. That is because it represents the one exception to all the carefully thought out anti-child-abduction rules that the statutory scheme sets up.

Comment: Think about this for a minute. The word "abandon" has always included some element of permanent and conscious renunciation - as one abandons a piece of trash. It has never meant failure to care for your kids in precisely the way some busybody or bureaucrat deems sufficient. For child custody jurisdiction purposes, there is no reason why the ordinary, long-standing, and broadly agreed and accepted definition isn't adequate.

Similarly, redefining "person" in subsection (12) to include government agencies and commercial entities may have unforeseen and unintended consequences.

Text of this Section of Uniform Act:

1) "Abandoned" means left without provision for reasonable and
necessary care or supervision.

(2) "Child" means an individual who has not attained 18 years of age.

(3) "Child-custody determination" means a judgment, decree, or other
order of a court providing for the legal custody, physical custody, or
visitation with respect to a child. The term includes a permanent,
temporary, initial, and modification order. The term does not include an
order relating to child support or other monetary obligation of an
individual.

(4) "Child-custody proceeding" means a proceeding in which legal
custody, physical custody, or visitation with respect to a child is an
issue. The term includes a proceeding for divorce, separation, neglect,
abuse, dependency, guardianship, paternity, termination of parental
rights, and protection from domestic violence, in which the issue may
appear. The term does not include a proceeding involving juvenile
delinquency, contractual emancipation, or enforcement under [Article] 3.

(5) "Commencement" means the filing of the first pleading in a
proceeding.

(6) "Court" means an entity authorized under the law of a State to
establish, enforce, or modify a child-custody determination.

(7) "Home State" means 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. In
the case of a child less than six months of age, the term means the
State in which the child lived from birth with any of the persons
mentioned. A period of temporary absence of any of the mentioned persons
is part of the period.

(8) "Initial determination" means the first child-custody determination
concerning a particular child.

(9) "Issuing court" means the court that makes a child-custody
determination for which enforcement is sought under this [Act].

(10) "Issuing State" means the State in which a child-custody
determination is made.

(11) "Modification" means a child-custody determination that changes,
replaces, supersedes, or is otherwise made after a previous
determination concerning the same child, whether or not it is made by
the court that made the previous determination.

(12) "Person" means an individual, corporation, business trust, estate,
trust, partnership, limited liability company, association, joint
venture, government; governmental subdivision, agency, or
instrumentality; public corporation; or any other legal or commercial
entity.

(13) "Person acting as a parent" means a person, other than a parent,
who:

(A) has physical custody of the child or has had physical custody for a
period of six consecutive months, including any temporary absence,
within one year immediately before the commencement of a child-custody
proceeding; and

(B) has been awarded legal custody by a court or claims a right to legal
custody under the law of this State.

(14) "Physical custody" means the physical care and supervision of a
child.

(15) "State" means a State of the United States, the District of
Columbia, Puerto Rico, the United States Virgin Islands, or any
territory or insular possession subject to the jurisdiction of the
United States.

[(16) "Tribe" means an Indian tribe or band, or Alaskan Native village,
which is recognized by federal law or formally acknowledged by a State.]

(17) "Warrant" means an order issued by a court authorizing law
enforcement officers to take physical custody of a child.



Virginia Version:

§20-146.1. Definitions.

In this Act:

"Abandoned" means left without provision for reasonable and necessary care or supervision.

"Child" means an individual who has not attained eighteen years of age.

"Child custody determination" means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual.

"Child custody proceeding" means a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. The term does not include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under Article 3 (§20-146.22 et seq.).

"Commencement" means the filing of the first pleading in a proceeding.

"Court" means an entity authorized under the law of a state to establish, enforce, or modify a child custody determination.

"Home state" means 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. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

"Initial determination" means the first child custody determination concerning a particular child.

"Issuing court" means the court that makes a child custody determination for which enforcement is sought under this Act.

"Issuing state" means the state in which a child custody determination is made.

"Modification" means a child custody determination that changes, replaces, supersedes, or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination.

"Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity.

"Person acting as a parent" means a person, other than a parent, who has (i) physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding and (ii) been awarded legal custody by a court or claims a right to legal custody under the laws of this Commonwealth.

"Physical custody" means the physical care and supervision of a child.

"State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

"Tribe" means an Indian tribe or band, or Alaskan Native village, which is recognized by federal law or formally acknowledged by a state.

"Warrant" means an order issued by a court authorizing law-enforcement officers to take physical custody of a child.

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