Trapped Abroad - the Uccjea in International Cases and the Need for an Expansive Application of the Escape Clause

• Jurisdiction: California,United States,Federal
• Author: Michelene Insalaco
• Publication year: 2014
• Citation: Vol. 36 No. 4

Trapped Abroad - The UCCJEA in International Cases and the Need for an Expansive Application of the Escape Clause

Michelene Insalaco

Ms. Insalaco has practiced exclusively in the area offamily law forover20 years, the last 17asa partneratSucherman • Insalaco LLP She has been a Certified Specialist in Family Law since 2003. She handles trial-level work and appeals. Her experience includes having been a member ofthe State Bar's Family Law Executive Committee (FlexCom); a member of the Board of Directors ofthe Association of Certified Family Law Specialists; and Chair of the Family Law Section Chair for the Bar Association of San Francisco (BASF). She is a frequent presenter and writer on a variety offamily law topics. She is also dedicated to pro bono work and has received numerous related awards including BASF's James P. Preovolos Award and an Angel Award from California Lawyer Magazine.

Introduction

Imagine you are being consulted by a mother who, two years ago, agreed with her husband's request that she and their baby daughter move with him to China for a two-year stint, so that the husband could take advantage of a temporary, international assignment with his U.S. employer. The parties placed their belongings in storage, rented their home in Los Angeles, and moved to China. In China, they rented an apartment and did not make any citizenship application. At the end of the two years, the husband was enjoying his new life and the parties' marriage was facing difficulties. The husband decided he did not wish to return to California for the time being, and he also did not want his daughter to leave. He thus took the daughter's passport and locked it up, and informed wife that, while she was free to go home, their daughter would be remaining in China with him. The wife flew back to California to consult with you. What is your advice?

Under existing California law, the appropriate advice would appear to be that, even though all of the parties involved are U.S. citizens and residents of California, if she wishes to see her daughter again the mother must return to China and litigate her child's custody there, even if she is assured of little or no due process in China; even if she has scant chance of gaining custody; and even if she is subject to indefinite detention in China upon her return. This is because California courts in this scenario would not likely have subject-matter jurisdiction over this custody proceeding under the UCCJEA, as adopted by our State.

That our laws would so provide is surprising to many attorneys working in family law. Our bar and Californians in general need to understand the risks of a temporary move abroad. Our family courts will see more international cases each year as we become an increasingly mobile society. Presently, more than five million Americans live abroad, and the global middle class is expected to triple in the next twenty years.

This article will introduce the Uniform Child Custody Jurisdiction and Enforcement Act, overview its international application, discuss in detail a provision of that Act that has been described as "the escape clause,"¹ and argue for a broader application of this important exception to the requirement to the international application of the uniform Act.

Background and Overview of the UCCJEA

Prior to the 1960s, no uniform laws existed in the U.S. governing custody jurisdiction. Over time more situations arose where parents separated, one moved away, and then each parent filed in different states a divorce or other custody action. And, more and more often after litigation was completed in one state, a parent would move to another state and file a new case. There was no clarity in these cases as to which order controlled, and as to when one court could modify the order of another court, leading to the necessity of federal cases.

To address this situation, in the 1960s the Conference of Commissioners on Uniform State Laws (a private law reform group that offers proposed statutes to state legislatures) promulgated the Uniform Child Custody Jurisdiction Act (UCCJA). This act was replaced in the 1990s by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), drafted by the National Conference of Commissioners on Uniform State Laws. The goal of these acts is to prevent parental kidnapping, avoid forum shopping, prevent the harm done to children by shifting them from state to state to re-litigate custody, and prevent jurisdictional conflicts between states. (In re Marriage of Nurie (2009) 176 Cal. App.4th 478, 496-97.)

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The UCCJEA or some form of it has been adopted by every U.S. jurisdiction except Massachusetts and Puerto Rico. (See ULC website at http://www.uniformlaws.org.)

A key provision of the UCCJEA is that only one court at any one time has subject-matter jurisdiction over custody of a child. Only that court may validly make custody orders. Strict application of this very bright-line...