Legislatures Consider Replacing UCCJA With UCCJEA

UCCJEA Section 108 -- NOTICE TO PERSONS OUTSIDE THE STATE

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 §146.7 (UCCJEA SECTION 108) ON NOTICE TO PERSONS OUTSIDE THE STATE may be somewhat unwise. This section significantly changes §20-128. It removes the possibility of service by certified or registered mail that is provided for in §20-128 (A) (2a). As before, it lets notice be given in any manner allowed by this state's law, but it no longer limits this to "personal delivery," and it also allows service by any method allowed under the law of the state where the person is served. The provision allowing service by publication if other means prove ineffective apparently no longer requires it to be "directed by the Court."

The Commissioners' "Comment" explains that their general approach is to let "many procedural issues" be determined by local law. The problem is that the Commissioners fail to recognize that the methods of service provided by the UCCJA, especially service by certified mail, have now become part of local law, custom and practice. The "Comment" gives examples of convenient new methods of service which may be available in various states and which they do not want the Act to preclude, such as FAX. They do not appear to consider that in some states, such as ours, this change restricts the available methods of service.

Current §20-128 (B) on the timing of notice is eliminated and not replaced. This is presumably another example of deferring to local procedures, but again, local procedures are not tailored to cases in which the party receiving the notice is quite likely to be in a faraway state and not represented by counsel. That is, the local procedures are not otherwise tailored to this function because the present UCCJA tailors them to such cases. One wonders why this section of the new Act cannot simply give a notice rule (5 days, 7 days, 21 days, or whatever) as the prior uniform Act attempted to do. The official NCCUSL Commentary's explanation is unhelpful.

Text of this Section of Uniform Act:
SECTION 108. NOTICE TO PERSONS OUTSIDE STATE.

(a) Notice required for the exercise of jurisdiction when a person is
outside this State may be given in a manner prescribed by the law of
this State for service of process or by the law of the State in which
the service is made. Notice must be given in a manner reasonably
calculated to give actual notice but may be by publication if other
means are not effective.

(b) Proof of service may be made in the manner prescribed by the law of
this State or by the law of the State in which the service is made.

(c) Notice is not required for the exercise of jurisdiction with respect
to a person who submits to the jurisdiction of the court.


Virginia Version:


§20-146.7. Notice to persons outside state.

A. Notice required for the exercise of jurisdiction when a person is outside this Commonwealth may be given in a manner prescribed by the law of this Commonwealth for service of process or by the law of the state in which the service is made. Notice must be given in a manner reasonably calculated to give actual notice but may be by publication if other means are not effective.

B. Proof of service may be made in the manner prescribed by the law of this Commonwealth or by the law of the state in which the service is made.

C. Notice is not required for the exercise of jurisdiction with respect to a person who submits to the jurisdiction of the court.


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