Jurisdiction and the Interstate Child: How to Avoid the Avoidable Complications

• Publication year: 1997
• Pages: 75
• Citation: Vol. 26 No. 3 Pg. 75

26 Colo.Law. 75 Colorado Lawyer 1997.

1997, March, Pg. 75. Jurisdiction and the Interstate Child: How To Avoid the Avoidable Complications

---

75

Vol. 26, No. 3, Pg. 75

The Colorado Lawyer
March 1997
Vol. 26, No. 3 [Page 75]

Specialty Law Columns
Family Law Newsletter
Jurisdiction and the Interstate Child: How To Avoid the Avoidable Complications
by Angela R. Arkin

Column Eds.: Bonnie M. Schriner, a sole practitioner in Denver - (303) 458-5100; Lesleigh Wiggs Monahan of Polidori Gerome, Franklin & Jacobson, LLC, Lakewood - (303) 936-3300

This newsletter is prepared by the CBA Family Law Section This month's article was written by Angela R. Arkin, an attorney, mediator, and legal consultant in Denver, (303) 322-1708

Jurisdictional disputes regarding children whose parents reside in different states have plagued parents and family law practitioners for decades. The interplay between federal and state custody and support statutes has been fodder for thousands of hours of tortuous, inconvenient, expensive legal wrangling. The recent passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ("PRAWORA")1 has added to the complexity.

PRAWORA magnifies the importance of the practitioner's choice of jurisdiction for initiating an interstate support or custody case and complicates a parent's decision to move out of the state that issued the original order. The new law mandates that all states pass the Uniform Interstate Family Support Act ("UIFSA")2 by January 1, 1998, and amends the Full Faith and Credit for Child Support Orders Act ("FFCCSOA")3 so that it now mirrors the revised UIFSA in almost all areas.4 Colorado has been operating under UIFSA since January 1, 1995, but the new legislation requires that, in all states, jurisdiction over the issues of child support and child custody continue with the state that issues the order for as long as any parent or the child continues to reside in the issuing state.5

Even if the children's issues are initially addressed in one state, if all parties have left the issuing state, the attorney could now be required to establish bases for jurisdiction over the support issue and the custody/parenting time issues in separate states when attempting to effect interstate modification of divorce and paternity orders.6 Understanding this problem takes a review of the jurisdictional choices made in the Uniform Child Custody Jurisdiction Act ("UCCJA"),7 the Parental Kidnaping Prevention Act ("PKPA"),8 UIFSA, and FFCCSOA.

The Relevant Statutes

UCCJA and PKPA: Custody And Parenting Time

Custody and parenting time are properly at issue in most interstate divorce and paternity proceedings.9 The UCCJA and PKPA govern the jurisdiction of interstate child custody disputes.10 Both the UCCJA and PKPA's jurisdictional concept is a "child-state" jurisdiction.11 Child-state jurisdiction involves only jurisdiction over the subject matter (the child). Essentially, personal jurisdiction is irrelevant, and interested parties are entitled only to personal service and an opportunity to be heard.12

The UCCJA has been enacted in all fifty states over the past twenty years13 and is determinative of interstate custody issues unless it is in conflict with the PKPA. The jurisdictional sections of the UCCJA and PKPA are virtually identical, except that the UCCJA does not state a preferred basis for jurisdiction. The PKPA shows a strong jurisdictional preference for the child's "home state" in an interstate child custody determination:

Full faith and credit given to child custody determinations.

. . .

(c) A child custody determination made by a court of a State is consistent with the provisions of this section only if -

(1) such court has jurisdiction under the law of such State; and

(2) one of the following conditions is met:

(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child's home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;

(B)(i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State . . . and (II) there is available in such State substantial evidence concerning the child's present or future case, protection, training, and personal relationships;

(C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child . . .;

(D)(i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction . . . and (ii) it is in the best interest of the child that such court assume jurisdiction; or

(E) the court has continuing jurisdiction pursuant to subsection (d) of this section.

(d) The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant. . . .14 [Emphasis added.]

If a trial court has failed to make the initial child custody determination in the child's home state, many jurisdictions have found that the order issued is not entitled to full faith and credit under the PKPA.15 The PKPA mandates that, once an initial custody order has been properly entered, jurisdiction to modify custody and parenting time continue in the state making the original child custody determination, unless all parties have left the original state, or the original state declines jurisdiction in favor of another state.16

UIFSA and FFCCSOA: Paternity and Support Issues

Although UIFSA was drafted to replace the Uniform Reciprocal Enforcement of Support Act ("URESA")17 in 1992, it still has not passed in many states, and was only effective in twelve states (not including Colorado) when the FFCCSOA became effective on October 20, 1994.18 Essentially, the FFCCSOA required all states to give full faith and credit to the child support orders of other states when enforcing such orders and prohibited issuance of a new order or modification of an existing order by a responding state if any contestant or the child continued to reside in the state that issued the order. The purposes of the FFCCSOA and UIFSA are virtually identical: "(1) to facilitate the enforcement of child support orders among the States; (2) to discourage continuing interstate controversies over child support in the interest of greater financial stability and secure family relationships for the child; and (3) to avoid jurisdictional competition and conflict among State courts in the establishment of child support orders."19

The FFCCSOA was codified in the same U.S. Code section as the PKPA to give the FFCCSOA the same indicia of preemption and constitutionality afforded the PKPA.20 The FFCCSOA mirrors UIFSA's jurisdictional concepts in the same way that the PKPA mirrors the UCCJA. The only major difference between the FFCCSOA and UIFSA is that the FFCCSOA immediately applied to all fifty states, to stop the proliferation of multiple orders in child support cases.21

"UIFSA includes a number of provisions that encourage 'one-state' case processing, including a comprehensive...