Jurisdiction Issues in Child Custody, Visitation and Support Cases
| Jurisdiction | Utah,United States |
| Citation | Vol. 9 No. 8 Pg. 10 |
| Pages | 10 |
| Publication year | 1996 |
David S. Dolowitz, J.
In today's mobile society we are frequently faced with the problems present when a client has a custody problem, a visitation problem or a suppon problem involving family members or former family members who reside in more than one state. In order to resolve jurisdictional disputes that arise, the states have adopted the Uniform Child Custody Jurisdiction Act (adopted in some form by all 50 states) and Congress enacted the Parental Kidnapping Prevention Act to set uniform rules governing custody and visitation disputes when the parents or children reside in different states. In addition to govern setting and collecting support, the presently existing Uniform Reciprocal Support Act is being replaced by the Uniform Interstate Family Support Act which was adopted in Utah in 1996. The following article was prepared as a discussion of and source material for working through these problems. First, it examines the issue of determining actual jurisdiction. Second, the article reviews the situation where more than one state has legal jurisdiction to act and the courts of the states involved must decide which state should act.
The Utah Supreme Court has clearly articulated the constitutional rule that before a court take any action, it must have both jurisdiction over the parties and the subject matter, Rimensburger v. Rimens-burger, 841 P.2d 709 (Utah App. 1992); Arguello v. Industrial Woodworking Machine Co., 838 P.2d 1120 (Utah 1992). Applying those principles to custody, visitation and child support actions involves two types of cases: those that are to be handled in Utah where either a Utah judgment or a foreign judgment is to be enforced, and those cases outside of the State of Utah where a Utah judgment is to be enforced. Each of these two categories of actions presents different problems which must be addressed.
A UTAH JUDGMENT IN UTAH
Once an action has been instituted in Utah that 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 when the Third District Court heard modification and enforcement proceeding of an action that had originally been brought to judgment in the Fifth District Court, it was clear error. The Court ruled that the Third District Court had no subject matter jurisdiction absent agreement of the parties to transfer the matter to that court. The decision of the Third District Court was vacated. The rule that emerged is clear; once a district court in Utah enters a decree of divorce, modification proceedings must be instituted in that court unless the parties agree to move the proceedings to another district.
FOREIGN JUDGMENTS IN UTAH
If one wishes to enforce or modify a foreign judgment in the courts of the state of Utah, it can be done in several ways. It must be effected by bringing an action to domesticate the foreign judgment in Utah and/or modify that judgment, by filing in the Utah court pursuant to Section 78-45c-15, the Utah Uniform Child Custody Jurisdiction Act, or by filing under the Foreign Judgments Act, Section 78-22a-l et. seq. The 1996 Legislature enacted domestic violence amendments to the Utah Code, Section 30-6-1(8) which provides for enforcement in I Utah courts of foreign protective orders where a protective order has been entered by 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 filing 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...
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