UCCJEA: Jurisdiction part 2

Some time ago, in a different blog post, I mentioned the UCCJEA in terms of child custody jurisdiction.  UCCJEA stands for Uniform Child Custody Jurisdiction and Enforcement Act.  This is a uniform law that was drafted at the federal level, in the interest of creating consistency among the states in regards to an issue that can cross state lines–custody of children and custody determinations of children.  All but one state (Massachusetts) have adopted the uniform law in substantially the form is was drafted originally.  In Utah, it’s located at Title 78B Chapter 13 of state code.  The whole point of the statute is to determine which state/jurisdiction has the right to exert its authority over individuals who are trying to enter court orders about custody of children.  One of the purposes is to make sure that a jurisdiction that would be most appropriate for the court case to happen is the one that is making it happen and enforcing the orders that come out of that case.

The basics:

A child must have been present in the state with intent to remain for at least 6 months prior to a custody action being started in that state.  If no custody orders have been entered as to these children ever, being in the state 6 months gives that state home state jurisdiction.  If a parent takes the kids and leaves a state that WOULD have had home state jurisdiction, the other parent can file in court for a custody determination in the state that WOULD have had home state jurisdiction.  In easier language:  If I live in Utah, and my spouse takes my kids and moves to Colorado, I can file for a divorce with custody in Utah any time within the first 6 months the kids are gone, because until they’ve been in Colorado for 6 months, Utah still has home state jurisdiction.  OR, if I’ve been living in Colorado, but take my kids and move to Arizona, and no action for custody determination is filed within 6 months in Colorado, I can file for custody in Arizona.  My kids being in Arizona for 6 months changes home state jurisdiction from Colorado to Arizona.

home-sweet-home

Not always so clear…

Sometimes a child may not have a home state.  In that case, a parent can file where he/she lives for a custody determination, so long as another case hasn’t been filed in the state where the child is currently located.  An example:

I had a case where parents were not and had never been married.  ORS in Utah had opened a child support case for the child, as both parents lived in Utah.  Both parents and the child lived in Utah for 5 years, with dad and his family having significant contact with and interaction with the child.  Mom then moved to Colorado with the child.  She had been in Colorado 11 months when she relocated  with the child to New Mexico.  Dad filed for a visitation order in Utah; by then, child had not lived in Utah in the previous 6 months; HOWEVER, the child technically did not have a home state at all, because she hadn’t been in New Mexico long enough for it to have home state jurisdiction (she’d only been there a couple of weeks).

Colorado would have been the home state, but because neither parent nor the child lived there, and no action had been filed in Colorado, it wasn’t an appropriate state to make a custody determination.  We had a hearing regarding jurisdiction in this case.  The court found in favor of my client, since there were not competing court cases involved (mom hadn’t filed in NM), dad was located in Utah with the intent to remain, and the child had significant connections in the state of Utah.  The Utah court had the right to, and was inclined to, take jurisdiction over the custody determination of this child.

Notice I said the court in Utah “was inclined to” take jurisdiction in that case.  A court CAN decline jurisdiction if it feels that it’s not appropriate to take jurisdiction–like if neither parent lives in that state anymore, but it would still be the home state. Example:  I live in North Dakota.  I move with my kids to Idaho; dad of kids also moves to Idaho.  After being in Idaho long enough for me to file for divorce–which is 60 days–I file for divorce.  Technically Idaho isn’t the home state, and wouldn’t have jurisdiction to make the custody determination.  But none of us, meaning neither parent nor the kids, live in North Dakota anymore.  So ND would likely decline to take jurisdiction, choosing instead to allow Idaho to handle the case, since Idaho is a more appropriate jurisdiction to determine best interests of the kids, etc.

Some cases are fairly cut and dried, like the ones I noted above.  Others….”ees grey area.”  What if the parents were both located in, say, Oregon when they got divorced, but since that time, both parents have moved to other states.  Could the non-custodial parent change the jurisdiction of custody to his state?  Sure.  So long as the custodial parent doesn’t challenge that action, or file her own action in the state that WOULD have home state jurisdiction.  Will it hold up under court scrutiny?  Maybe, maybe not.  The arguments exist to both support it and deny it.  A lot of it comes down to the inclinations of the court, and whether another state has been asked to take jurisdiction over child custody.  And whether Oregon, in this example, will relinquish its right to continuing jurisdiction. Lots of “ifs,” thus “grey area.”

'It's only a gray area if you've got a good lawyer.'

Maybe 😉

Clear as mud?  If you’ve got questions, feel free to message me, and hopefully I can clear that mud to at least dirty water ;).

 

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