Legislatures Consider Replacing UCCJA With UCCJEA

Section 201 -- -- HOME STATE PRIORITY - INITIAL CUSTODY JURISDICTION

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

In the UCCJEA, as in the PKPA, the state which has initial-determination jurisdiction -- or in fact jurisdiction at any time to do anything, once the continuing jurisdiction of Forum 1 is out of the way -- is the current "home" state of the child. Now the state statutes will be just like the PKPA, with a rigid and exclusive hierarchy of the bases for jurisdiction. The only state with jurisdiction will be the home state, if there is one. If there is no home state, then and only then do you go to "significant connection" jurisdiction (actually, significant-connection plus most-evidence jurisdiction), and so on.

Comment: Proposed §146.12 (UCCJEA SECTION 201) ON INITIAL CHILD CUSTODY JURISDICTION is definitely an improvement. The old Act set up a damnably subtle conundrum in using Section 3 to detail the kinds of initial jurisdiction as though they were all valid jurisdictions for all purposes, and clarifying only by later sections of the Act that modification jurisdiction required a whole lot more. This is the way the Uniform Act should have been drafted from the beginning.

Text:

SECTION 201. INITIAL CHILD-CUSTODY JURISDICTION.

(a) Except as otherwise provided in Section 204, a court of this State
has jurisdiction to make an initial child-custody determination only if:

(1) this State is the home State of the child on the date of the
commencement of the proceeding, or was the home State of the child
within six months before the commencement of the proceeding and the
child is absent from this State but a parent or person acting as a
parent continues to live in this State;

(2) a court of another State does not have jurisdiction under paragraph
(1), or a court of the home State of the child has declined to exercise
jurisdiction on the ground that this State is the more appropriate forum
under Section 207 or 208, and:

(A) the child and the child's parents, or the child and at least one
parent or a person acting as a parent, have a significant connection
with this State other than mere physical presence; and

(B) substantial evidence is available in this State concerning the
child's care, protection, training, and personal relationships;

(3) all courts having jurisdiction under paragraph (1) or (2) have
declined to exercise jurisdiction on the ground that a court of this
State is the more appropriate forum to determine the custody of the
child under Section 207 or 208; or

(4) no court of any other State would have jurisdiction under the
criteria specified in paragraph (1), (2), or (3).

(b) Subsection (a) is the exclusive jurisdictional basis for making a
child-custody determination by a court of this State.

(c) Physical presence of, or personal jurisdiction over, a party or a
child is not necessary or sufficient to make a child-custody
determination.

Virginia Version:

§20-146.12. Initial child custody jurisdiction.

A. Except as otherwise provided in §20-146.15, a court of this Commonwealth has jurisdiction to make an initial child custody determination only if:

1. This Commonwealth is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this Commonwealth but a parent or person acting as a parent continues to live in this Commonwealth;

2. A court of another state does not have jurisdiction under subdivision 1, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate forum under §20-146.18 or §20-146.19, and (i) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this Commonwealth other than mere physical presence and (ii) substantial evidence is available in this Commonwealth concerning the child's care, protection, training, and personal relationships;

3. All courts having jurisdiction under subdivision 1 or 2 have declined to exercise jurisdiction on the ground that a court of this Commonwealth is the more appropriate forum to determine the custody of the child under §20-146.18 or § 20-146.19; or

4. No court of any other state would have jurisdiction under the criteria specified in subdivision 1, 2, or 3.

B. Subsection A is the exclusive jurisdictional basis for making a child custody determination by a court of this Commonwealth.

C. Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

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