Applying the UCCJEA in Family Law
| Author | Joseph W. Booth |
| Pages | 17-60 |
SPRING 2021 17
YES
Does my state
have substantial
connection and
significant evidence?
Is a party or c hild
in my state?
Was initial
action filed in
my state first?
My state has
jurisdiction to
modify or
make order
NO
NO NO
NO
YES NO
NO
YES
YES
YES
YES
YES
YES
Is my state
the home state
or order state?
Has that
state declined
jurisdiction?
Is there
a home state?
The order state
has exclusive
continuing jurisdic-
tion to modify or
make order
Is a party or
child in the
order state?
The Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA) is a model act from
the Uniform Law Commission (formally NCCUSL)
intended to create a common state law. All states,
except Massachusetts, have adopted the Act.
Massachusetts has adopted the earlier Uniform Child
Custody Jurisdiction Act (UCCJA). e UCCJA was
designed to be the state’s response to the enactment of the
Parental Kidnapping Prevention Act (PKPA). 28 U.S.C. §
1738A. e updated UCCJEA was intended, in part, to
resolve any perceived conicts between the respective state
and federal laws.
Applying the UCCJEA in Family Law
BY JOSEPH W. BOOTH
e Act is available online at https://www.uniformlaws.
org. is link is very helpful because the Uniform Law
Commission (ULC) provides commentary for each provision
of the Act.
Both the state and federal acts have one main goal: to
ensure that there is only one controlling child custody order
and that the resulting order is given full faith and credit.
What Do You and Your Paralegal Need to Know Best
Let’s assume you just hired a new paralegal, with one of their
jobs being to screen new clients as they call in. Let’s further
assume that you hired your adult child. ey want to look
Establishment or Modication of a Child Custody Order Under UCCJEA
Ever been a
valid custody
order made
elsewhere?
Published in Family Advocate, Volume 43, Number 4, Spring 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
18 FAMILY ADVOCATE www.shopaba.org
good, but they are also intolerant of your explanations. What
do you want to pound into their heads?
If they don’t walk away with these questions, and respons-
es, hardwired, make Jr. pay for lunch—and order a top-shelf
martini before you close out the tab.
en take the ow charts from this article and place them
near their phone alongside the UIFSA ow charts from the
Spring 2017 issue of Family Advocate. Uniform Laws for
Family Law, 39 Fam. Adv., no. 4, Spring 2017, at 12, 14.
Complexity
Family law jurisdiction appears complex. It seems that way
because dierent aspects of a family law case nd jurisdictional
support in dierent places. Here, we are discussing child-custo-
dy jurisdiction; there, we discuss family support jurisdiction.
In each, specic jurisdictional rules result in dierent jurisdic-
tional criteria. Traditional notions of jurisdiction simply don’t
apply. One would expect that if you have jurisdiction over the
parents, then you have control over all aspects of the case. Not
so! When jurisdiction is wrongly applied, cases became chaotic,
with parties (not only a mom and a dad) getting contradictory
orders from one state or another.
On a personal level, if you try to apply the wrong
jurisdictional decision and lead the case in the wrong way,
you might be accused of malpractice.
Family law has those two unique jurisdictional subtopics:
child custody and child support. ere are other jurisdic-
tional considerations, such as the status of marriage, property
division, and choice of law relating to any contracts the
parties are engaged in—we’re all familiar with the common
law. But these two—child support and child custody—don’t
follow common law standards.
The UCCJEA’s Applicability
e UCCJEA applies to all “child-custody proceedings.”
Such proceedings are dened under the Act as:
...a proceeding for divorce, separation, neglect, abuse,
dependency, guardianship, paternity, termination of
parental rights, and protection from domestic violence, in
which the issue may appear. e term does not include a
proceeding involving juvenile delinquency, contractual
emancipation, or enforcement under [Article] 3.
UCCJEA § 101(4). Individual states may add additional
proceedings; for example, many states have extended the use
of the UCCJEA to adoptions.
If the proceeding is a child-custody proceeding, the initial
pleadings must include what is commonly called a UCCJEA
adavit, the elements of which are set out in section 209. is
statute sets out the required information to be supplied to
the court.
Removing States’ Common Law Jurisdiction
e real key to understanding how the UCCJEA works
comes with the realization that the Act holds child-custody
jurisdiction to the state that has the closest connection to the
children and the family. Once a state has seized jurisdiction,
that jurisdiction may continue even after the subject child
has left the state for years.
Child-custody jurisdiction is subject matter jurisdiction.
As such, it cannot be waived by the parties, and jurisdictional
challenges may be brought at any time, including on appeal,
and by any court sua sponte. e only time an agreement
between the parties is persuasive would be a factor in
determining the convenience of a forum or retaining
jurisdiction in the face of unjustiable conduct.
Jurisdiction to make nonemergency child-custody orders
is established through three main concepts:
1. “Home State.” Id. § 101(7). is iconic status is dened
by the Act as:
“Home State” means 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.
In the case of a child less than six months of age, the
term means the State in which the child lived from
birth with any of the persons mentioned. A period
of temporary absence of any of the mentioned
persons is part of the period.
Aside from meeting this standard, home state may be
established when a court that otherwise would not have
jurisdiction under section 201 takes temporary emergency
jurisdiction and issues orders; if no action has been
commenced under sections 201–203, then the issuing state
hearing the emergency is deemed the child’s home state.
2. Exclusive, Continuing Jurisdiction. Id. §202. Under-
standing the uniformity of the Act, this statute provides
that the state that issued a child-custody order, not a
temporary emergency order under section 204, will have
modication jurisdiction until the child and anyone acting
as a parent have left the state. is determination is up to
the issuing state or a sister-state where a petition is led on
the basis that jurisdiction is now vested in this new state.
Notice that the idea of “parent” includes those acting as a
parent who are not legal parents, such as a guardian.
3. Initial Child-Custody Jurisdiction. Id. §201. is
statute is a gatekeeper provision, meaning that anytime
there is a proposed change in jurisdiction, section 201 is
the rule applicable in establishing a new jurisdiction. is
statute rst looks for a home state; failing to nd any state
tting that denition or a sister-state having declined
jurisdiction, then a two-prong test is applied: (a) does the
child and their parents, or at least one parent (including
Published in Family Advocate, Volume 43, Number 4, Spring 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
SPRING 2021 19
Is this an emergency where a
child is abandoned or a family
member is subject to or
threatened with abuse?
Has any court issued curr ently
controlling orders relating to
child custody? If not, then work
toward a client engagement.
If so, try to get the clien t
booked immediately.
If so, then work toward
developing a client engagement.
Advise the caller that anot her
state may have jurisdiction,
offer consultation after that is
understood.
Have all parental figures a nd
children left the other state?
Was it our state?
NO
NO
NO
YES
YES
NO
YES
YES
CHILD CUSTODY TRIAGE
acting as a parent), have a signicant connection with this
state and (b) is substantial evidence for the child’s care,
protection, training, and personal relationships to be
found in this state?
Emergency Jurisdiction
readed throughout the Act as an exception to many of its
mandates is the idea of emergency jurisdiction. Id. §204.
is statute is limited in scope and duration and presumes
that jurisdiction cannot be established by this court under
sections 201–203. Jurisdiction for a court to act is predicated
on (1) the child being in the state and (2) there being a
showing of abandonment or an emergent need to protect the
child—or the child’s sibling or parent—from threatened or
actual mistreatment or abuse.
e statute breaks out into two circumstances. First, if no
proceeding has commenced under sections 201–203 in any
other state, the court may proceed to issue orders. If at that
time there still is no proceeding commenced in any state that
would have jurisdiction under sections 201–203, then the
state from which the court invoked emergency jurisdiction
will be deemed the child’s home state.
e second instance is where there is another court that
has seized jurisdiction under sections 201–203 and has issued
an order. en the court with emergency jurisdiction can
only make a temporary order. at temporary order must
specify a period reasonably calculated to allow a movant to
then seek further orders from the court that has jurisdiction.
To assure that this temporary order does not violate the full
faith and credit mandate, the court with temporary emer-
Published in Family Advocate, Volume 43, Number 4, Spring 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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