Legislatures Consider Replacing UCCJA With UCCJEA

Section 201 -- TEMPORARY EMERGENCY 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 biggest problem with the emergency jurisdiction that the UCCJA perforce left intact, for situations where a child was abused, neglected or abandoned in some new state, was that judges eager to grant and consolidate a hometown advantage to child snatchers were using it as an excuse to disregard the whole rest of the UCCJA. That is, a court that had no valid basis for jurisdiction could still make custody orders about a child if it could find such an "emergency." Among judges administering the UCCJA there was some doubt whether emergency jurisdiction truly existed as a jurisdiction at all, but the greater problem was its use as a mandate for making final and permanent custody decisions.

The overwhelming weight of case law interprets the UCCJA emergency provisions as granting only the authority to make temporary decisions designed to preserve the status quo and the life of the child long enough to get the case back to the proper state - the one that does have jurisdiction under the UCCJA. But, when renegade courts say that they do not find any such restriction in the language of the UCCJA, and use this provision to reward and legitimize child snatching, you have a terrible situation on your hands. The new uniform act expressly recognizes that emergency jurisdiction exists and is jurisdiction, but expressly limits it to temporary orders.

However, the reformers could not resist a chance to say things about domestic violence. Also, they were under enormous political pressure to change quite a number of UCCJA provisions to make child snatching a legitimate strategy for anyone smart enough to invoke that all-powerful phrase. Even the final draft gives in to some of that pressure in other sections. And although the Commissioners were careful to put at least one of their changes in brackets (meaning that they do not necessarily recommend that language, and that it raises political issues that should be debated), the Virginia drafters have included it. (Subsection E of §20-146.20, UCCJEA Sec. 209(E).

Comment: Proposed §146.15 (UCCJEA SECTION 204). TEMPORARY EMERGENCY JURISDICTION. This is definitely an improvement, most importantly because it recognizes that this jurisdiction exists, and is in fact jurisdiction, and then expressly provides that the authority is only temporary. Nearly everything that is said in this section had to be said. This section should be drafted with extreme care because it unleashes one of the most dangerous "wild cards" in the whole statutory scheme. "Emergency Jurisdiction" is still capable of setting at naught the whole carefully devised structure of the Act, and facilitating the very parental kidnapping behavior which the Act was meant to discourage and curb. Though very valuable and indispensable overall, this section will nonetheless work in combination with the careless definition of "abandoned" in §146.1 (UCCJEA SECTION 102) to produce some bad results. And as the Commissioners explain in their notes, the expansion of categories of threats triggering this Section (from child to child plus sibling or parent) will interact with the Violence Against Women Act (18 U.S.C. §2265, 2266) to make extremely summary court decisions, made in other states, binding on Virginia's courts when they go to determine whether this Section will apply.

Emergency Jurisdiction and Domestic Violence

The special exception for domestic violence creating emergency jurisdiction, in UCCJEA SECTION 204 subparagraph A, creates a problem by virtue of its interaction with the VAWA (Violence Against Women Act).

It is true that the term "domestic violence" does not appear in the new proposed temporary emergency jurisdiction section, §20-146.15. Rather, the new S.B. 413 revision creates a new category of (or excuse for) emergency jurisdiction that did not exist before -- not in the UCCJA nor in the PKPA -- for cases in which "it is necessary in an emergency to protect the child because the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse." The earlier statutes, of course, spoke only of situations wherein the child is subjected to or threatened with mistreatment or abuse.

Thus we are to have a new category of emergency jurisdiction (and remember that emergency jurisdiction is the phenomenon which operates to throw all the other carefully-constructed rules of the UCCJEA out the window) in a case where there is the threat of abuse of a parent. Now abuse of a parent is a very bad thing, but it was not used as an excuse for throwing out the UCCJA's jurisdictional rules before. Moreover, it is entirely unclear why abuse of a parent should in any way be a reason for rendering the UCCJEA/PKPA jurisdictional rules inoperative.

What is rather dangerous about this provision, and subjects it to the possibility of considerable tactical misuse, is its interaction with the VAWA, which the Commissioners in their draft explain in four paragraphs of official Comments (i.e., explanatory notes). The Commissioners appear to take some pride in the subtlety of this.

As you know, the official commentary is not part of the UCCJEA in our state (1998 SB 413). However, it certainly does at times help in trying to understand it. The VAWA, Violence Against Women Act, 18 U.S.C. §2265, §2266 makes any finding of domestic violence by any tribunal binding upon the courts of all other states through a full-faith and credit requirement. Not only that, the VAWA forbids any reexamination of or looking behind the facts of that determination. Once a domestic violence finding is made, the labeling is permanent, so if such a case came in from another state, it seems Virginia would then to have find "abuse of a parent" and then would have to find emergency jurisdiction. As I have said before, these abuse determinations are often made very hastily on an emergency basis themselves, without very careful examination of the facts. While that may be a good thing in its own sphere, it is not at all certain that the effect won't be a mischievous one in the area of child custody jurisdiction determinations. Child custody is an area in which people exploit every tactical advantage anyone can think of, for the basest of ends, so the two areas of jurisprudence do not necessarily fit together well, nor in such a way as serves the best interests of children.

Text of this Section of Uniform Act:

SECTION 204. TEMPORARY EMERGENCY JURISDICTION.

(a) A court of this State has temporary emergency jurisdiction if the
child is present in this State and the child has been abandoned or it is
necessary in an emergency to protect the child because the child, or a
sibling or parent of the child, is subjected to or threatened with
mistreatment or abuse.

(b) If there is no previous child-custody determination that is entitled
to be enforced under this [Act] and a child-custody proceeding has not
been commenced in a court of a State having jurisdiction under Sections
201 through 203, a child-custody determination made under this section
remains in effect until an order is obtained from a court of a State
having jurisdiction under Sections 201 through 203. If a child-custody
proceeding has not been or is not commenced in a court of a State having
jurisdiction under Sections 201 through 203, a child-custody
determination made under this section becomes a final determination, if
it so provides and this State becomes the home State of the child.

(c) If there is a previous child-custody determination that is entitled
to be enforced under this [Act], or a child-custody proceeding has been
commenced in a court of a State having jurisdiction under Sections 201
through 203, any order issued by a court of this State under this
section must specify in the order a period that the court considers
adequate to allow the person seeking an order to obtain an order from
the State having jurisdiction under Sections 201 through 203. The order
issued in this State remains in effect until an order is obtained from
the other State within the period specified or the period expires.

(d) A court of this State which has been asked to make a child-custody
determination under this section, upon being informed that a
child-custody proceeding has been commenced in, or a child-custody
determination has been made by, a court of a State having jurisdiction
under Sections 201 through 203, shall immediately communicate with the
other court. A court of this State which is exercising jurisdiction
pursuant to Sections 201 through 203, upon being informed that a
child-custody proceeding has been commenced in, or a child-custody
determination has been made by, a court of another State under a statute
similar to this section shall immediately communicate with the court of
that State to resolve the emergency, protect the safety of the parties
and the child, and determine a period for the duration of the temporary order.
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Virginia Version:

§20-146.15. Temporary emergency jurisdiction.

A. A court of this Commonwealth has temporary emergency jurisdiction if the child is present in this Commonwealth and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.

B. If there is no previous child custody determination that is entitled to be enforced under this Act and a child custody proceeding has not been commenced in a court of a state having jurisdiction under §§20-146.12 through 20-146.14, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under §§20-146.12 through 20-146.14. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under §§20-146.12 through 20-146.14, a child custody determination made under this section becomes a final determination, if it so provides and this Commonwealth becomes the home state of the child.

C. If there is a previous child custody determination that is entitled to be enforced under this Act, or a child custody proceeding has been commenced in a court of a State having jurisdiction under §§ 20-146.12 through 20-146.14, any order issued by a court of this Commonwealth under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under §§20-146.12 through 20-146.14. The order issued in this Commonwealth remains in effect until an order is obtained from the other state within the period specified or the period expires.

D. A court of this Commonwealth which has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under §§ 20-146.12 through 20-146.14, shall immediately communicate with the other court. A court of this Commonwealth which is exercising jurisdiction pursuant to §§20-146.12 through 20-146.14, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.



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