Legislatures Consider Replacing UCCJA With UCCJEA

Section 202 -- CONTINUING 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

The new jurisdictional scheme for states was supposed to look a lot like the federal PKPA (Parental Kidnapping Prevention Act, 28 USC §1738 A). The UCCJEA will say, in §146.13, that the jurisdiction of the last state to make a custody determination as to this child continues. However, the Act clarifies that this continuing jurisdiction cannot be created by orders made under mere "emergency jurisdiction."

Proposed §146.13 (UCCJEA SECTION 202) ON EXCLUSIVE CONTINUING JURISDICTION provides that once a court in this state has made a custody order, if that court had jurisdiction under the Act's sections on initial determination jurisdiction or modification jurisdiction (but not emergency jurisdiction), then it has exclusive continuing jurisdiction until any court determines that everyone has left the state, or a court in this state finds that "the child and one parent" do not have significant connections or substantial evidence available. So if you want to modify you have got to go back to the state that made the last custody order, at least to argue "significant connections", unless everybody has moved away, just as it is now in order for any state decision to conform to the PKPA. This continuing jurisdiction is strictly exclusive.

One quite disturbing paragraph (§146.13 (2)(B)) has been added that will make the state UCCJEA operate quite differently from the PKPA. For some reason there is the additional provision that there will be no continuing jurisdiction - even if one party remains in the state - if the courts of that state determine that that parent who still lives there does not, in combination with her child, have "significant connections" with the state in which she lives. This is a Lawyers' Relief Act added to the simple bright-line test that has worked so well as part of the PKPA. Anyone who thinks parents won't litigate this issue because of the venue doesn't know much about this field of litigation. Of course Virginia can do without this paragraph, and if our General Assembly should delete that first paragraph from the Commissioners' draft, the statute will work fine, and will indeed do what its promoters so loudly argue as its primary selling point: be the same as the PKPA. There is clearly someone on the revision committee who really does not like non-custodial parents who are so churlish as to remain in the original-decree state and frustrate the efforts of child snatchers and relocators to litigate all custody disputes across state lines or international borders in the child's new home.

We should leave out subsection 146.13 A 1. It still does not conform our statute to the PKPA, and in fact undermines the PKPA. It diminishes the continuing exclusive jurisdiction created by the PKPA by saying it ends if the courts of the state that made the last custody order determine that that parent who still lives there does not (in combination with his or her child) have "significant connections" with the state in which he or she lives. It does this in language that provides no guidance on how little of a connection is significant, presumably leaving that up to existing case law on what was a significant connection (case law which arose out of somewhat different situations). The exact language is "neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this Commonwealth and that substantial evidence is no longer available." What is the role of the "one parent" in this equation? Does visitation count? How much visitation does it take? The Commissioners' Comment says nothing about this, although it says a lot about other things, such as how the language about "parents" is meant to exclude grandparents, state agencies and other third parties.

It is important to remember that the federal PKPA will not preempt this provision of the UCCJEA. The reason is that the continuing-jurisdiction provision of the PKPA itself says that it doesn't operate if state law provides that there is no continuing jurisdiction under the state's own law. In other words this will nullify the PKPA. Right now most judges don't think twice about sending custody modification petitioners back to the original-decree state as soon as they learn that there is a parent back there. Things won't be anything like that quick or that easy now.
______
Text of this Section of Uniform Act:
SECTION 202. EXCLUSIVE, CONTINUING JURISDICTION.

(a) Except as otherwise provided in Section 204, a court of this State
which has made a child-custody determination consistent with Section 201
or 203 has exclusive, continuing jurisdiction over the determination
until:

(1) a court of this State determines that neither the child, the child's
parents, and any person acting as a parent do not have a significant
connection with this State and that substantial evidence is no longer
available in this State concerning the child's care, protection,
training, and personal relationships; or

(2) a court of this State or a court of another State determines that
the child, the child's parents, and any person acting as a parent do not
presently reside in this State.

(b) A court of this State which has made a child-custody determination
and does not have exclusive, continuing jurisdiction under this section
may modify that determination only if it has jurisdiction to make an
initial determination under Section 201.

Virginia Version:
Proposed Virginia Code §20-146.13. Exclusive, continuing jurisdiction.

A. Except as otherwise provided in §20-146.15, a court of this Commonwealth which has made a child custody determination consistent with §20-126.12 or §20-146.14 has exclusive, continuing jurisdiction over the determination until:

1. A court of this Commonwealth determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this Commonwealth and that substantial evidence is no longer available in this Commonwealth concerning the child's care, protection, training, and personal relationships; or

2. A court of this Commonwealth or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this Commonwealth.

B. A court of this Commonwealth which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under § 20-146.12.

Return to: Table of Contents of Article | Introduction to UCCJEA | Crouch & Crouch home page | Family Law Information | Family Law Articles Index

Disclaimer: Items are not to be considered legal advice or to create any lawyer-client relationship. Most articles include some obsolete information. In addition, taking any legal information out of context, i.e., using it in a different court or a subtly different kind of case, or without the training to understand all of what it means or doing research to verify it, usually has disastrous consequences.