Legislatures Consider Replacing UCCJA With UCCJEA

Section 207 -- GIVING UP EXCLUSIVE JURISDICTION -- FORUM NON CONVENIENS

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

Of course the first forum that still has exclusive continuing jurisdiction can waive it ("decline exercise and defer to another state" in UCCJA parlance). That procedure that with the UCCJA is so informal and easy, with ad hoc judicial phone calls, is much more formalized in the UCCJEA. It can't happen until there is a hearing, with notice, etc. The majority of courts construing UCCJA §7 had rejected that policy and that view.

Comment: Proposed §146.18 (UCCJEA SECTION 207) FORUM NON CONVENIENS. The forum non conveniens provisions for discretionary declining and deferring of exercise of jurisdiction under §7 of the UCCJA worked well and have been construed fairly often by the Virginia appellate courts. In the UCCJEA, contrasted with the earlier Uniform Act, the Number One deferral consideration is domestic violence.

Rewriting Subsection (B) of this section in such a heavily politicized way may not be a sound idea. It could be the basis of much future trouble and operate in such a way as to facilitate child snatching in quite a range of cases. They used to say about rape that it was a charge easily made and with infinite difficulty disproved. However, "domestic violence" which covers a vast and ever-expanding multitude of perceived slights and sins, is far more that way. It is the easiest thing in the world for an unscrupulous man or woman (or lawyer) to allege domestic violence - whatever that, at that particular moment in history, is taken to mean. How that works to the benefit of children as a custody-jurisdiction-exercise criterion is just assumed, not explained. People may have to move to flee domestic violence, but they do not have to cross state lines to do it. When they do cross state lines they are doing it for reasons of gaining an advantage in custody litigation. Encouraging this could be a very unwise step with bad results for children for years to come, and we should think very carefully before putting it in our statutes.

Text of this Section of Uniform Act:

SECTION 207. INCONVENIENT FORUM.

(a) A court of this State which has jurisdiction under this [Act] to
make a child-custody determination may decline to exercise its
jurisdiction at any time if it determines that it is an inconvenient
forum under the circumstances and that a court of another State is a
more appropriate forum. The issue of inconvenient forum may be raised
upon motion of a party, the court's own motion, or request of another
court.

(b) Before determining whether it is an inconvenient forum, a court of
this State shall consider whether it is appropriate for a court of
another State to exercise jurisdiction. For this purpose, the court
shall allow the parties to submit information and shall consider all
relevant factors, including:

(1) whether domestic violence has occurred and is likely to continue in
the future and which State could best protect the parties and the child;

(2) the length of time the child has resided outside this State;

(3) the distance between the court in this State and the court in the
State that would assume jurisdiction;

(4) the relative financial circumstances of the parties;

(5) any agreement of the parties as to which State should assume
jurisdiction;

(6) the nature and location of the evidence required to resolve the
pending litigation, including testimony of the child;

(7) the ability of the court of each State to decide the issue
expeditiously and the procedures necessary to present the evidence; and

(8) the familiarity of the court of each State with the facts and issues
in the pending litigation.

(c) If a court of this State determines that it is an inconvenient forum
and that a court of another State is a more appropriate forum, it shall
stay the proceedings upon condition that a child-custody proceeding be
promptly commenced in another designated State and may impose any other
condition the court considers just and proper.

(d) A court of this State may decline to exercise its jurisdiction under
this [Act] if a child-custody determination is incidental to an action
for divorce or another proceeding while still retaining jurisdiction
over the divorce or other proceeding.


Virginia Version:

§20-146.18. Inconvenient forum.

A. A court of this Commonwealth which has jurisdiction under this Act to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon the motion of a party, the court's own motion, or request of another court.

B. Before determining whether it is an inconvenient forum, a court of this Commonwealth shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:

1. Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

2. The length of time the child has resided outside this Commonwealth ;

3. The distance between the court in this Commonwealth and the court in the state that would assume jurisdiction;

4. The relative financial circumstances of the parties;

5. Any agreement of the parties as to which state should assume jurisdiction;

6. The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

7. The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

8. The familiarity of the court of each state with the facts and issues in the pending litigation.

C. If a court of this Commonwealth determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.

D. A court of this Commonwealth may decline to exercise its jurisdiction under this Act if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.


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