§46.05 Bases for Subject Matter Jurisdiction

• Jurisdiction: Washington

§ 46.05 BASES FOR SUBJECT MATTER JURISDICTION

The description of the bases for subject matter jurisdiction for custody proceedings has evolved since the UCCJA was promulgated. The UCCJA was adopted by all the states, but there were ambiguities and inconsistent interpretations. In 1980, the PKPA was adopted. Although it continued the basic concepts of the UCCJA, it also added provisions that caused the state and federal laws to differ significantly in some respects. The UCCJEA was promulgated in 1997 in an attempt to harmonize state and federal law and clarify some jurisdictional provisions. Washington adopted the UCCJEA in 2001 as Chapter 26.27 RCW and repealed the UCCJA portions of the chapter at the same time.

This section will include a discussion of the statutory provisions of the UCCJEA and PKPA and case law interpreting both. Because many of the provisions of the UCCJA and UCCJEA are similar, case law interpreting the UCCJA will also be included to the extent that it appears to be consistent with the UCCJEA. (Note that cases and statutory citations sometimes mistakenly refer to the UCCJEA as the UCCJA. See the Caveat in § 46.01, above.)

[1] UCCJEA as the Exclusive Source for Subject Matter Jurisdiction

The UCCJEA is the "exclusive" jurisdictional basis for child custody proceedings, RCW 26.27.201(2), and "[p]hysical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient" for a custody determination, RCW 26.27.201(3); see also RCW 26.27.221. Prior concepts of what was required for jurisdiction for custody matters are rejected. Minimum contacts with the state, service within the state, or personal jurisdiction over a parent or child is not required, as long as the UCCJEA and PKPA standards for jurisdiction, notice, and opportunity to be heard are satisfied. See UCCJEA § 201 cmt.

Subject matter jurisdiction relates to the power of a court to hear a particular proceeding, and it must be based on a statute or the Constitution. See also In re Custody of A.C., 165 Wn.2d 568, 577 n.8, 200 P.3d 689 (2009) (agreements regarding waiver of jurisdictional bases of the UCCJEA are not effective, as noted in the comment to UCCJEA § 201. In re Marriage of Murphy, 90 Wn. App. 488, 952 P.2d 624 (1998)). The question of subject matter jurisdiction may be raised by the court or a party at any time. See Campbell v. Campbell, 180 Ind. App. 351, 388 N.E.2d 607 (1979) (lack of subject matter jurisdiction "may be raised at any time by the parties, or sua sponte by a court of review"). It is therefore important that a court accepting jurisdiction of a custody proceeding identify the basis for jurisdiction as set forth in the UCCJEA and PKPA.

This section will describe the bases for jurisdiction that appear in the UCCJEA and PKPA.

Caveat: There has been dispute over how the term "jurisdiction" is used in the UCCJEA and cases applying the statute.
In 1994, the Supreme Court of Washington described the UCCJA bases for assuming jurisdiction as "not so much a grant of jurisdiction as they are a limitation upon a court's assumption of jurisdiction." In re Marriage of Greenlaw, 123 Wn.2d 593, 604, 869 P.2d 1024, cert. denied, 513 U.S. 935 (1994).
In 2009, the Supreme Court of Washington stated that the term "subject matter jurisdiction" is used for consistency, but that Washington courts did have subject matter jurisdiction under WASH. CONST. art. IV, § 6, and that the UCCJEA "might have more accurately used the term 'exclusive venue instead of 'subject matter jurisdiction.' " In re Custody of A.C., 165 Wn.2d 568, 573 n.3, 200 P.3d 689 (2009).
The point was discussed in more depth by Division I in In re Marriage of McDermott, 175 Wn, App. 467, 307 P.3d 717 (2013). The McDermott court explained that many decisions use the word "jurisdiction" in an inaccurate manner, and that the broad subject matter jurisdiction granted by WASH. CONST. art. IV, § 6 cannot be "whittled away" by statute. Id. (quotations omitted). The McDermott court also noted that in Custody of A.C., the Supreme Court used the term "jurisdiction" for consistency, and thus the McDermott court did the same, while noting disagreement with different treatment given to the issue by Division III. See Custody of A.C., 165 Wn.2d 568 at n.8; cf. In re Parentage of Ruff, 168 Wn. App. 109, 117-18, 275 P.3d 1175 (2012) (Division III stated that "[n]othing in our constitution prohibits the legislature from creating procedural prerequisites to the court's exercise of jurisdiction" and concluded that the procedural requirements of the UCCJEA are jurisdictional).

[2] The Home State Priority in Initial Custody Proceedings

Under the UCCJA, the home state was the preferred forum in an initial custody proceeding, but the priority was not explicit. The PKPA and the UCCJEA make the priority clear. Under the PKPA, absent an emergency, if the custody order is not given by the home state, it is not entitled to full faith and credit unless there is no home state or the home state has declined to exercise jurisdiction. 28 U.S.C. §§ 1738A(a), (c)(2)(B). The UCCJEA provides that, except in emergencies, a court must be in the home state of the child to have jurisdiction to make an initial custody determination. Any other basis for jurisdiction exists only if there is no home state or a state with jurisdiction has declined to exercise its jurisdiction. RCW 26.27.201; see also In re Marriage of Hamilton, 120 Wn. App. 147, 157, 84 P.3d 259 (2004).

"Home state" is defined as "the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding" or if the child is less than six months old, "the state in which the child lived from birth with a parent or person acting as a parent." RCW 26.27.021(7); see also 28 U.S.C. § 1738A(b)(4). The time of commencement of the proceeding is therefore the time when the test for home state jurisdiction must be satisfied. "Commencement" means the filing of the first pleading in the proceeding. RCW 26.27.021(5); see also In re Marriage of Payne, 79 Wn. App. 43, 50, 899 P.2d 1318 (1995) (state procedural rules determine length of time filing is effective without service).

Periods of temporary absence count as part of the six months for purposes of home state jurisdiction. 28 U.S.C. § 1738A(b)(4); RCW 26.27.021(7). "Temporary absence" is not defined. However, courts have held that factors such as the intentions of the parties are relevant in determining whether an absence is "temporary." For example, in Marriage of Payne, 79 Wn. App. 43, the family moved from Virginia to Washington. The father then returned to Virginia, where he filed a custody action five and one-half months after the move to Washington. Virginia could have qualified as the child's home state if the child's absence from the state was only temporary. However, the child's absence from Virginia could not qualify as temporary because the family had moved to Washington with the intention of residing there permanently. Id. at 51-52. The court eventually determined that since there was no home state, and both Washington and Virginia had significant connections with the child, the superior court acted within its discretion by declining jurisdiction on the grounds that Virginia was the more convenient forum. Id. at 54; see also In re Parentage, Parenting, & Support of A.R.K.-K, 142 Wn. App. 297, 304, 174 P.3d 160 (2007) (moving from Washington to another state to escape abuse was not evidence of intent to return to Washington).

In Marriage of McDermott, 175 Wn, App. 467, the parents lived in Kansas, but went to Costa Rica for the birth of their child for the purpose of giving the child dual citizenship. After the child was born, they went back to Kansas. The mother moved to Washington when the child was five and a half months old, and after another two and a half months, filed for custody, alleging no home state, as the child had not lived anywhere for six...