The Uniform Child Custody Jurisdiction Enforcement Act: Part I

• Publication year: 2000
• Pages: 73
• Citation: Vol. 29 No. 9 Pg. 73

29 Colo.Law. 73 Colorado Lawyer 2000.

2000, September, Pg. 73. The Uniform Child Custody Jurisdiction Enforcement Act: Part I

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73

Vol. 29, No. 9, Pg. 73

The Colorado Lawyer
September 2000
Vol. 29, No. 9 [Page 73]

Specialty Law Columns
Family Law Newsletter
The Uniform Child Custody Jurisdiction Enforcement Act: Part I
by Angela R. Arkin

The National Conference of Commissioners on Uniform State Laws ("NCCUSL") drafted the Uniform Child Custody Jurisdiction Enforcement Act ("UCCJEA" or "the Act") for two purposes: (1) to bring the Uniform Child Custody Jurisdiction Act ("UCCJA")1 into compliance with the Parental Kidnaping Prevention Act ("PKPA"), 2 and (2) to simplify procedures for enforcement of interstate parenting time orders. The UCCJEA became law in seventeen states in 1999, and was introduced in twelve more, including Colorado, in 2000.3

The Colorado version of the UCCJEA, House Bill ("HB") 1262, replaces the UCCJA at CRS §§ 14-13-101 et seq. and will be effective for all "causes of action" filed on or after July 1, 2000.4 The passage of the UCCJEA in Colorado is intended to improve the lives of Colorado parents with out-of-state children and the lives of Colorado children with out-of-state parents

Part I of this article provides an overview of the history and significant changes in the UCCJEA and describes Part 1 of the Act. Part II of this article, which will appear in the October 2000 issue, will cover the establishment enforcement, and modification of rules in interstate custody cases, as contained in Parts 2 and 3 of the UCCJEA. Part 4 of the UCCJEA is considered briefly in the "Drafting Issues" section below

History

Prior to the passage of the UCCJEA in Colorado, the UCCJA and PKPA governed the jurisdiction of interstate child custody disputes. The UCCJA and PKPA jurisdictional concept, which also was adopted by the UCCJEA, is "child-state" jurisdiction.5 Child-state jurisdiction involves only jurisdiction over the subject matter (the child) and usually arises after the child has resided in the "home state" for more than six months. Personal jurisdiction is therefore irrelevant, and interested parties are entitled only to personal service and an opportunity to be heard.6

The UCCJA was drafted with the intention of discouraging interstate kidnaping of children by their non-custodial parents.7The UCCJA specified four bases under which a court could take jurisdiction in an interstate custody case: (1) home state, (2) significant connection, (3) emergency, and (4) "no other state" jurisdiction. However, it gave no priority to any particular basis for jurisdiction.8 Often, a parent would leave Colorado with the children, and ask a new state (State B) with which the parent and children had some significant connection to accept jurisdiction. The parent then would litigate the custody issue in State B, and State B would issue a ruling. Unless the courts in Colorado and State B had agreed that State B was the appropriate court to exercise jurisdiction, the parent remaining in Colorado would assert home state jurisdiction, litigate the custody issue in Colorado, and Colorado would issue orders, often completely different from those issued in State B.9

In an attempt to remedy the lack of priority of jurisdictional bases in the UCCJA, Congress passed the PKPA in 1981.10The jurisdictional sections of the UCCJA and PKPA are virtually identical, except that the PKPA shows a strong jurisdictional preference for the child?s home state in an interstate child custody determination.11 If the first state trial court failed to make the initial child custody determination in the child?s home state, the PKPA mandates that the order issued in the first state is not entitled to full faith and credit.12 This finding only invalidates the first state?s order; it does not save the parties from the expensive and exhausting re-litigation of the entire proceeding in the child?s home state.

The PKPA also mandates that, once an initial custody order has been entered properly, jurisdiction to modify custody and parenting time continues in the state making that properly entered initial child custody order, unless all parties have left the original state or the original state declines jurisdiction in favor of another state.13 This mandate did not end the jurisdictional wrangling, as courts found that one parent and the child?s move out-of-state could divest the issuing state of jurisdiction under the UCCJA, even if the other parent still lived there.14

A remaining problem was that if both parties and the child left the state that issued the original custody order, the conflicted jurisdictional bases of the UCCJA...