Update on the Law Governing Jurisdiction Issues in Child Custody, Visitation and Support Cases
| Jurisdiction | Utah,United States |
| Citation | Vol. 12 No. 5 Pg. 13 |
| Pages | 13 |
| Publication year | 1999 |
David S. Dolowitz.
Editor's Note: This is an update to an article that was written as part of the Special Problems in Divorce Seminar presented by the Utah Fellows of the American Academy of Matrimonial lawyer in December, 1995 and published in the Utah Bar Journal in October, 1996. It reflects the adoption of the Uniform Interstate Support of Families Act, decisions that have occurred since the original publication and in the pending adoption of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
The Utah Supreme Court has clearly articulated the constitutional rule that before a Utah court may take any action, it must have jurisdiction over both the parties and the subject matter. Rimensburger v. Rimensburger, 841 P.2d 709 (Utah App. 1992); Arguello v. Industrial Woodworking Machine Co., 838 P.2d 1120 (Utah 1992). Custody, visitation and child support actions involve two types of cases: those handled in Utah where either a Utah judgment or a foreign judgment is to be enforced and those outside of Utah where a Utah judgment is to be enforced. Each of these two categories presents different problems which must be addressed both under the Constitution of the United States and applicable State and Federal statutes.
A UTAH JUDGMENT IN UTAH
Once an action originating in Utah has resulted in the entry of a decree of divorce adjudicating custody, visitation or child support, absent an agreement to change venue, further actions to modify this judgment must be brought in the original court. Rimensburger v. Rimensburger, 841 P.2d 709 (Utah App. 1992). In Rimensburger, the Utah Supreme Court ruled that it was clear error for the Third District Court to hear modification and enforcement proceedings of a judgment originally entered by the Fifth District Court. The Court ruled the Third District had no subject matter jurisdiction absent agreement of the parties to transfer the matter to that court. The Third District Court's decision was vacated. The clear rule is that once a Utah district court enters a decree of judgment, modification proceedings must be instituted in that court unless the parties agree otherwise.
FOREIGN JUDGMENTS IN UTAH
If one wishes to enforce or modify a foreign judgment in Utah courts it can be done in several ways: (1) bringing an action to domesticate the foreign judgment in Utah and/or modify that judgment; (2) requesting the Utah courts pursuant to §78-45c-15 of the Utah Uniform Child Custody and Jurisdiction Act; or (3) registering under the Foreign Judgments Act, §78-22a-l et. seq. The 1996 Legislature enacted Utah Code §30-6-1 (8), which provides for enforcement in Utah courts of foreign protective orders where the protective order was entered in another state in conformity with due process of law and the procedural requirements of the Utah Domestic Violence Act.
The traditional method of domesticating a foreign judgment is to file an action to enter a foreign judgment as a Utah judgment. This is effected by securing an authenticated copy of the foreign judgment and fifing an action for its entry in Utah as a Utah judgment requesting enforcement or modification as would a party in a Utah court (in the district where the defendant resides). Angell v. Sixth Judicial District Court of Sevier County, 656 P.2d 405 (Utah 1982).
To utilize the procedure under the Uniform Child Custody and Jurisdiction Act, one would have to comply with the procedure described in §78-45c-15.
It should be noted that the following requirements of §78-45c-15 of the Utah Code provide for enforcement, not modification, of a foreign decree. Therefore, an action to modify a foreign decree would have to be pursued after registration and any such action would have to comply with the requirements of both §78-45c-l of the Uniform Child Custody and Jurisdiction Act and the Parental Kidnaping Prevention Act. 28 U.S.C. §1738A. However, the 1998 decision of the Utah Court of Appeals in Bankler v. Bankler, 963 P.2d 797 (Utah App. 1998), appears to prohibit Utah courts from modifying a decree of divorce which would include support and custody if either party continues to reside in the original decree state and did not agree to Utah courts assuming jurisdiction to modify the original decree. This goes beyond the reservations of jurisdiction that are discussed later under the Parental Kidnaping Prevention Act (PKPA) (28 U.S.C. §1738A), the Full Faith and Credit for Child Support orders (28 U.S.C. §1738B), the Uniform Interstate Family Support Act (§78-45f-205(4) of the Utah Code) and, if it is adopted, the UCCJEA.
In interpreting and applying § 78-45c-15, one should keep in mind the definition of a "custody determination" as set forth in §78-45c-2(2):
(2) "Custody determination" means a court decision and court orders and instruction providing for the custody of a child, including visitation rights; it does not include a decision relating to child support or any other monetary obligation of any person; and a "custody proceeding" as defined in §78-45c-2(3):
(3) "Custody proceeding" includes proceedings in which a custody determination is one of several issues, such as an action for dissolution of marriage, or legal separation, and includes child neglect and dependency proceedings.
A custody determination involves custody and visitation under the Uniform Child...
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