The Uniform Child-Custody Jurisdiction and Enforcement Act

U.S. Department of Justice

Office of Justice Programs

Office of Juvenile Justice and Delinquency Prevention

December 2001

A Message From OJJDP

America is a society with a substan-

tial divorce rate. Each year, more

than 1,000,000 children in the United

States are affected by the divorce of

their parents, and of all children who

are born to married parents this year,

half are likely to experience a divorce

in their families before they reach

their 18th birthdays.

America is also a highly mobile socie-

ty. On the dissolution of family ties, it

is not uncommon that a parent, per-

haps even both parents, may move

out of the State in which the family

resided at the time of their separa-

tion. Thus, it is not surprising that

courts in different States are becom-

ing involved in child-custody and visi-

tation disputes concerning the same

children.

The Uniform Child-Custody Jurisdic-

tion and Enforcement Act, which is

described in this Bulletin, has been

proposed by the National Conference

of Commissioners on Uniform State

Laws. The proposed uniform State

law is designed to deter interstate

parental kidnapping and to promote

uniform jurisdiction and enforcement

provisions in interstate child-custody

and visitation cases. The Act has

been enacted by 25 States and the

District of Columbia and introduced

into legislatures in several other

States.

It is our hope that the information

provided in this Bulletin will assist

those considering the adoption of

this model law in their States.

The Act requires State courts to enforce

valid child-custody and visitation determi-

nations made by sister State courts. It also

establishes innovative interstate enforce-

ment procedures.

The UCCJEA is intended as an improve-

ment over the UCCJA. It clarifies UCCJA

provisions that have received conflicting

interpretations in courts across the coun-

try, codifies practices that have effective-

ly reduced interstate conflict, conforms

jurisdictional standards to those of the

Federal Parental Kidnapping Prevention

Act (the PKPA)

to ensure interstate en-

forceability of orders, and adds protec-

tions for victims of domestic violence who

move out of State for safe haven.

The UCCJEA, however, is not a substan-

tive custody statute. It does not dictate

standards for making or modifying child-

custody and visitation decisions; instead,

it determines which States’ courts have

and should exercise jurisdiction to do so.

A court must have jurisdiction (i.e., the

power and authority to hear and decide a

matter) before it can proceed to consider

the merits of a case. The UCCJEA does not

apply to child support cases.

Legal Background

In a mobile society with a high rate of

divorce, courts in different States (and

countries) often become involved in

The Uniform Child-Custody

Jurisdiction and

Enforcement Act

Patricia M. Hoff

This Bulletin describes the Uniform Child-

Custody Jurisdiction and Enforcement Act

(the UCCJEA),

the most recent in a series

of laws designed to deter interstate pa-

rental kidnapping and promote uniform

jurisdiction and enforcement provisions

in interstate child-custody and visitation

cases. The Office of Juvenile Justice and

Delinquency Prevention (OJJDP) is pub-

lishing this Bulletin to provide current in-

formation about the UCCJEA to legislators

in States considering its adoption and to

parents and practitioners in States that

have already adopted the law. The Bulle-

tin is not an official OJJDP endorsement

of the Act.

The UCCJEA is a uniform State law that

was approved in 1997 by the National

Conference of Commissioners on Uniform

State Laws (NCCUSL) to replace its 1968

Uniform Child Custody Jurisdiction Act

(the UCCJA).

NCCUSL drafts and propos-

es laws in areas where it believes uniform-

ity is important, but the laws become

effective only upon adoption by State leg-

islatures. As of July 2001, 26 jurisdictions

had adopted the UCCJEA,

and it had been

introduced in 2000–01 in the legislatures

of 10 others.

The UCCJEA governs State courts’ juris-

diction to make and modify “child-custody

determinations,” a term that expressly

includes custody and visitation orders.

child could choose the forum that would

decide custody, parents had a legal incen-

tive to abduct children. For example, a

parent could take a child to a State to

which the child had no previous ties and

a court in that State could exercise juris-

diction and make or modify a custody

determination. Abducting parents benefit-

ed under this system, but their “seize and

run”

tactics exacted a heavy toll on chil-

dren and the judicial system. Children’s

lives were disrupted, and judicial re-

sources were squandered as courts in

numerous States often heard custody

cases regarding the same children.

Given the interstate nature of the prob-

lem, an interstate solution was needed.

NCCUSL responded in 1968 with the

UCCJA, which governed the existence

and exercise of jurisdiction in initial child-

custody determinations and cases involv-

ing modification of existing orders. The

law also required States to enforce and

not modify sister States’ orders. The new

requirements were intended to remove

parents’ legal incentive to abduct children

in search of a friendly forum that would

make an initial custody order or modify

an existing order.

The UCCJA based jurisdiction on a child’s

close affiliation with a State. Specifically, it

established four jurisdictional grounds:

◆ Home State (reserved for the State in

which the child has lived for at least 6

months preceding commencement of

the action).

◆ Significant connection (exists when a

State has substantial evidence about a

child as a result of the child’s signifi-

cant connections to that State).

◆ Emergency (governs situations such as

abandonment or abuse that require

immediate protective action).

◆ Vacuum (applies when no other juris-

dictional basis exists).

Except in emergency cases, the UCCJA

eliminated a child’s physical presence in a

State as grounds for exercising jurisdic-

tion. As a result, a court could no longer

base jurisdiction solely on a child’s pres-

ence in the State, nor would a child’s

absence from the State necessarily de-

prive the court of jurisdiction. Under the

UCCJA’s extended home State rule, a left-

behind parent could petition for custody

in the child’s home State even after an

abduction. The UCCJA also required

States to enforce and not modify valid

custody and visitation orders made by

sister States.

child-custody and visitation disputes con-

cerning the same child. When families are

intact, children generally live in one or

more States with both parents. After a

family breakup, one parent may move with

a child to another State, often to pursue a

job opportunity or a new relationship or

to return to extended family. The other

parent may remain in the original State or

move to another State. Additional moves

may occur over time, possibly to different

States, back to the family’s original State,

or out of the country.

Interstate and international moves involv-

ing children raise challenging legal ques-

tions as to which State (or country) has

and should exercise jurisdiction to make

an initial child-custody determination or

modify an existing custody order. Ques-

tions also arise as to whether a custody

determination made in one State (or coun-

try) is enforceable in another State and, if

so, what procedures are available to se-

cure enforcement.

States and Congress have responded to

these issues by enacting laws (i.e., the

UCCJA and the PKPA) that regulate courts’

jurisdiction to make and modify custody

and visitation determinations and that

dictate the interstate effect such determi-

nations are to be given in sister States.

Other laws that affect child custody and

visitation have also been enacted. In fact,

it was this veritable alphabet soup of

laws—the UCCJA, the PKPA, the Violence

Against Women Act (the VAWA),

the

Hague Convention on the Civil Aspects of

International Child Abduction (the Hague

Convention),

and the International Child

Abduction Remedies Act (the ICARA)

—

that prompted NCCUSL in 1997 to draft an

improved child-custody jurisdiction and

enforcement statute. To understand the

new law, it is helpful to examine the legal

backdrop against which the UCCJEA was

developed.

The Uniform Child Custody

Jurisdiction Act

Overview. Before 1968, State courts

throughout the United States could exer-

cise jurisdiction over a child-custody case

based on a child’s presence in the State.

Courts also freely modified sister States’

orders because U.S. Supreme Court rul-

ings had never settled the question of

whether the Full Faith and Credit clause of

the U.S. Constitution applied to custody

decrees.

This legal climate fostered child

abduction and forum shopping: Because

parents with physical possession of a

Unresolved problems. Although the

UCCJA was a major improvement over

pre-1968 law governing jurisdiction in

child-custody cases, some problems

remained. The law did not eliminate the

possibility of two or more States having

concurrent jurisdiction (e.g., based on

home State and significant connection

jurisdiction), and the statute’s prohibition

against simultaneous proceedings was not

routinely effective in preventing courts

in different States from exercising juris-

diction and issuing conflicting custody

orders. In addition, contrary to the restric-

tive interpretation of emergency jurisdic-

tion intended by the drafters, some judges

used this basis of jurisdiction to provide

permanent relief, rather than to temporar-

ily address an urgent problem until the

court with regular jurisdiction could act.

Jurisdictional conflicts also continued in

modification cases. For instance, when a

child moved from his or her original home

State and established a new home State,

courts in both States frequently asserted

jurisdiction to modify an existing order.

This overlap often led to conflicting cus-

tody orders and uncertainty for children

and parents.

Although the UCCJA obligated courts to

enforce and not modify custody orders of

sister States, it did not provide enforce-

ment procedures to carry out this require-

ment. Litigants were left to discover local

enforcement procedures on their own,

and such procedures varied considerably

across the country (e.g., contempt pro-

ceedings, motions to enforce, motions to

grant full faith and credit, and habeas

corpus proceedings). The variety of State

enforcement procedures delayed enforce-

ment (sometimes to the point of denying

relief, as in the case of weekend visitation

interference), added costs (due to multi-

state variations and practices), made out-

comes unpredictable, and sometimes al-

lowed local courts to modify out-of-State

orders, contrary to the UCCJA’s intent.

In addition, States passed the UCCJA with

variations in the language. For instance,

four States omitted section 23, which

extends the principles of the Act to cus-

tody orders made in other countries. The

variety undermined the uniform interpre-

tation and application of the law across

the country and created loopholes that

led to the issuance of conflicting custody

orders. (These and other problems with

the UCCJA were documented by the Ob-

stacles to the Recovery and Return of

Parentally Abducted Children Project,

(e.g., one may have home State and anoth-

er significant connection jurisdiction), the

PKPA gives priority to home State jurisdic-

tion. This priority is intended to limit jur-

isdiction in initial custody cases to one

State, the child’s home State. The PKPA’s

home State priority is designed to prevent

a significant connection State from exer-

cising jurisdiction over a matter when the

child who is the subject of the proceeding

has a “home State.”

Exclusive, continuing jurisdiction. Ex-

clusive, continuing jurisdiction under the

PKPA protects an original decree State’s

jurisdiction to modify its own order. This

protection addresses an ambiguity in the

UCCJA’s modification section that some

courts have interpreted as allowing a

child’s new home State to exercise modifi-

cation jurisdiction even when the decree

State (i.e., the child’s former home State)

could still exercise jurisdiction on signifi-

cant connection grounds. Under the

PKPA, the original home State has exclu-

sive, continuing jurisdiction to modify its

own order to the exclusion of all other

States, including the child’s new home

State—assuming that the original home

State has jurisdiction under State law

(e.g., significant connection) and that at

least one parent or the child continues to

live there. Moreover, every State, includ-

ing a significant connection State, must

grant full faith and credit to the home

State’s order.

Unresolved problems. The PKPA did not

solve all of the problems it targeted, part-

ly because of some confusion about its

relationship to the UCCJA and the incon-

sistencies between the two laws and part-

ly because many lawyers and judges ig-

nored the PKPA or were unaware of its

impact on UCCJA practice. These prob-

lems and inconsistencies are documented

in the Obstacles Project Final Report.

Other Relevant Federal Laws

Some laws enacted after the UCCJA added

a Federal dimension to interstate and in-

ternational child-custody practices that

was unforeseen by the drafters of the

UCCJA in 1968 (but which was considered

by drafters of the UCCJEA in 1997). In

addition to the PKPA, these Federal laws

include the Full Faith and Credit provi-

sions of the VAWA, enacted in 1994; the

Hague Convention, ratified in 1986; and

the ICARA, enacted in 1988.

The VAWA. In recognition of the fact that

domestic violence victims often leave the

State where they were abused and need

continuing protection in their new loca-

tions, the VAWA provides, among other

things, for interstate enforcement of pro-

tection orders. Custody provisions incor-

porated into protection orders, however,

are not governed by the VAWA.

These

provisions are “custody determinations,”

subject to the PKPA and State law govern-

ing jurisdiction in child-custody cases.

Neither the PKPA nor the UCCJA explicitly

addresses the key concerns of domestic

violence victims who must litigate child

custody interstate. The UCCJEA, however,

addresses these concerns with a number

of provisions. For instance, it protects

against disclosure of a victim’s address,

expands emergency jurisdiction to cases

in which a parent or sibling is at risk, and

requires courts to consider family abuse

in their “inconvenient forum” analysis.

The Hague Convention and the ICARA.

The Hague Convention

and the Federal

statute that implements it (the ICARA)

deal with international wrongful removal

and retention of children. The Hague Con-

vention establishes administrative and

judicial mechanisms to expedite the re-

turn of children (usually to their country

of habitual residence) who have been

abducted or wrongfully retained and to

facilitate the exercise of visitation across

international borders. Under the Hague

Convention, children who are wrongfully

removed from or retained in a contracting

State (i.e., a country that is party to the

Convention) are subject to prompt return.

The UCCJEA specifically provides for the

enforcement of Hague Convention return

orders and authorizes public officials to

locate and secure the return of children

in Hague Convention cases. The UCCJEA

contains other provisions that clarify

when foreign custody determinations

(from Hague and non-Hague countries) are

entitled to enforcement and when courts

in the United States must defer to the cus-

tody jurisdiction of a foreign court.

Rationale Underlying

the UCCJEA

Custody contestants have sometimes

exploited jurisdictional ambiguities to

draw out litigation, secure conflicting cus-

tody orders, and delay (or deny) enforce-

ment of valid custody and visitation or-

ders. In these instances, resources that

could have been used to help children

were instead spent on multistate litigation.

which was carried out by the American

Bar Association Center on Children and

the Law pursuant to a cooperative agree-

ment with OJJDP.

) Although every State

eventually enacted the UCCJA, the handful

of States that were slow to do so became

magnets for forum-shopping parents.

The Parental Kidnapping

Prevention Act

To close existing gaps and bring greater

uniformity to interstate child-custody

practice, Congress in 1980 enacted the

PKPA, which requires State courts to:

◆ Enforce and not modify (i.e., grant full

faith and credit to) custody and vis-

itation determinations made by sister

States consistently with the PKPA,

unless the original State no longer

has, or has declined to exercise,

jurisdiction.

◆ Defer to the “exclusive, continuing

jurisdiction” (see below) of the de-

cree State as long as that State exer-

cised jurisdiction consistently with the

PKPA when it made its determination,

has jurisdiction under its own law, and

remains the residence of the child or

any contestant.

(“Contestant” is de-

fined as a person, including a parent,

who claims a right to custody or visita-

tion rights with respect to a child.)

◆ Refrain from exercising jurisdiction

while another State is exercising juris-

diction over a matter consistently with

the PKPA.

◆ Ensure that the following persons are

provided reasonable notice and oppor-

tunity to be heard: contestants, any

parent whose parental rights have not

been terminated, and any person who

has physical custody of the child.

State courts that exercise jurisdiction con-

sistently with the criteria in the PKPA are

entitled as a matter of Federal law to have

their custody and visitation orders given

full faith and credit in sister States. These

courts also have exclusive, continuing

jurisdiction to modify their own orders

under circumstances stipulated in the law.

The PKPA’s jurisdictional criteria resemble

those of the UCCJA, but there are signifi-

cant differences. PKPA jurisdictional provi-

sions are discussed in the sections that

follow.

Home State priority. The PKPA prioritizes

home State jurisdiction in initial custody

cases.

Whereas two States may have

jurisdiction over a case under the UCCJA

Eliminating such contentious multistate

litigation of custody is one of the stated

purposes

of the UCCJA, which is intend-

ed to:

(1) avoid jurisdictional competition

and conflict with courts of other

states in matters of child custody

which have in the past resulted in

the shifting of children from state to

state with harmful effects on their

well-being . . . [and] (4) discourage

continuing controversies over child

custody in the interest of greater

stability of home environment and

of secure family relationships for

the child.

Parents bent on “winning” an interstate

custody case (or ensuring that the other

parent “loses”) sometimes employ tactics

that may hurt children in the process.

Ironically, some parents lose sight of their

children when fighting for the right to

keep them. In a particularly egregious

case,

for example, after 3 years of litiga-

tion in Indiana that should have resulted

in a child’s immediate return to her moth-

er (pursuant to an Indiana order enforcing

a Hawaiian order), a juvenile court inter-

vened at the last minute and ordered the

child detained for a mental examination.

The father’s attorney had orchestrated a

CHINS (Child In Need of Services) pro-

ceeding in juvenile court to prevent the

child’s return to her mother. The case

remains a strong reminder of the need for

a custody jurisdiction statute that clearly

specifies the proceedings to which it ap-

plies, restricts the use of emergency juris-

diction, and establishes enforcement pro-

cedures that are expeditious, sure, and

predictable. The UCCJEA accomplishes

these objectives.

Protracted custody litigation and conflict-

ing orders not only undermine a child’s

sense of stability; they also raise the pos-

sibility of criminal liability for either or

both of the child’s parents, who may face

charges in one State when complying with

the order of another. California v. Superior

Court of California, San Bernardino County

(Smolin et al.),

exemplifies this predica-

ment. In this case, the U.S. Supreme Court

refused to block a California father’s extra-

dition to Louisiana, where he was charged

with simple kidnapping. The criminal

charges stemmed from the father’s “self-

help” recovery of his children from Lou-

isiana, where they had moved with their

mother. The father argued that he could

not be charged with simple kidnapping

under Louisiana law (and thus should not

be extradited) because he was the lawful

custodian of the children pursuant to a

California custody order that was entitled

under the PKPA to full faith and credit in

Louisiana. The Supreme Court, however,

held that under the Uniform Criminal Ex-

tradition Act, 18 U.S.C. § 3182, the place

for the father to assert his defenses to the

criminal charge (however meritorious)

was Louisiana, not California.

The UCCJEA’s enforcement mechanisms

authorize public officials to assist in expe-

dited enforcement proceedings and allow

for an abbreviated, court-assisted registra-

tion process. In doing so, these mecha-

nisms should considerably reduce self-

help recoveries, which can be emotionally

and physically injurious to children and

legally problematic for parents.

UCCJEA Highlights

This section provides a brief overview

of the UCCJEA’s jurisdiction and enforce-

ment provisions. The cases to which the

UCCJEA applies and the law’s jurisdic-

tion and enforcement provisions are de-

scribed in detail in the next sections of

this Bulletin.

Jurisdiction: Articles 1 and 2

The UCCJEA is a complete replacement

for the UCCJA. Articles 1 and 2 of the

UCCJEA contain jurisdictional rules that

essentially bring the UCCJA into conformi-

ty with the PKPA. Modeling the UCCJEA’s

jurisdictional standards on the PKPA’s

standards is intended to produce custody

determinations that are entitled under

Federal law to full faith and credit in sister

States. The UCCJEA also addresses the

practice and interpretation problems de-

scribed earlier in this Bulletin and brings

the law into harmony with the VAWA and

the Hague Convention.

Under articles 1 and 2, the UCCJEA,

among other things:

◆ Applies to a range of proceedings in

which custody or visitation is at

issue.

◆ Grants priority to home State

jurisdiction.

◆ Preserves exclusive, continuing juris-

diction in the decree State if that State

determines that it has a basis for

exercising jurisdiction. Such jurisdic-

tion continues until the child, his or

her parents, and any person acting as

the child’s parent move away from the

decree State.

◆ Authorizes courts to exercise emer-

gency jurisdiction in cases involving

family abuse and limits the relief avail-

able in emergency cases to temporary

custody orders.

◆ Revamps the rules governing inconven-

ient forum analysis, requiring courts to

consider specified factors.

◆ Directs courts to decline jurisdiction

created by unjustifiable conduct.

Enforcement: Article 3

The UCCJEA also establishes uniform pro-

cedures for interstate enforcement of child-

custody and visitation determinations.

In particular, article 3 of the UCCJEA:

◆ Authorizes temporary enforcement of

visitation determinations.

◆ Creates an interstate registration

process for out-of-State custody

determinations.

◆ Establishes a procedure for speedy

interstate enforcement of custody and

visitation determinations.

◆ Authorizes issuance of warrants direct-

ing law enforcement to pick up children

at risk of being removed from the

State.

◆ Authorizes public officials to assist in

the civil enforcement of custody deter-

minations and in Hague Convention

cases.

Applicability of the

UCCJEA

Covered Proceedings

The UCCJEA applies to a variety of pro-

ceedings.

Specifically, courts in UCCJEA

States must comply with the statute when

custody and visitation issues arise in

proceedings for divorce, separation, ne-

glect, abuse, dependency, guardianship,

paternity, termination of parental rights,

and protection from domestic violence.

The UCCJEA does not apply to child sup-

port proceedings

or adoption cases.

Identifying the specific proceedings to

which the UCCJEA is applicable clarifies

when courts must conform to the UCCJEA,

which should minimize the likelihood that

more than one State will take jurisdiction

over the same matter.

Initial and Modification

Determinations

The UCCJEA governs courts’ jurisdiction

to issue permanent, temporary,

initial,

and modification orders. The rules that

govern courts’ jurisdiction to make an ini-

tial custody determination differ from

those governing jurisdiction to modify an

existing order. The type of custody pro-

ceeding determines which rules apply and

whether a court has the authority to act.

Foreign Custody Orders and

Proceedings

The UCCJEA requires State courts to rec-

ognize and enforce custody determina-

tions made by foreign courts under factual

circumstances that substantially conform

with the UCCJEA’s jurisdictional standards

and to defer to foreign courts as if they

were State courts.

However, State courts

need not apply the Act (i.e., enforce a for-

eign court order or defer to a foreign

court’s jurisdiction) if the child-custody

law of the foreign country violates funda-

mental principles of human rights. This

language is derived from article 20 of

the Hague Convention. According to the

U.S. Department of State’s legal analysis

of the Convention, the “human rights/

fundamental freedoms” defense to return

may be invoked “on the rare occasion that

return of a child would utterly shock the

conscience of the court or offend all

notions of due process.”

Tribal Court Orders and

Proceedings

The UCCJEA does not apply to custody

proceedings concerning American Indian

children to the extent that such proceed-

ings are governed by the Indian Child

Welfare Act, 25 U.S.C. § 1901 et seq.

Child-

custody proceedings in State courts that

involve tribal-State jurisdictional disputes

are subject to the UCCJEA only if the State

has enacted optional sections 104(b) and

courts to treat tribes as if they were States

and tribal court custody proceedings as

if they were court proceedings of sister

States and to enforce tribal court custody

orders.

Jurisdictional

Provisions of the

UCCJEA

There are two requirements under the

UCCJEA for making or modifying a cus-

tody determination: (1) the court must

have a basis of jurisdiction under the Act

(i.e., subject-matter jurisdiction), and

(2) the parties must be given notice and

opportunity to be heard. Personal jurisdic-

tion over a party or child—based on phys-

ical presence in or minimum contacts with

the State—is not required. Moreover, a

court that has personal jurisdiction over a

party or child cannot adjudicate custody

unless it has a basis for exercising juris-

diction under the Act.

The UCCJEA’s jurisdictional provisions

vary, based on whether a case involves an

initial custody or visitation determination

or modification of an existing order. This

section describes the UCCJEA’s jurisdic-

tional provisions and provides examples

that illustrate the intended effect of many

of these provisions. It also describes two

grounds on which courts may decline to

exercise jurisdiction under the UCCJEA

and includes examples of each.

Initial Jurisdiction

The UCCJEA establishes four bases for

initial jurisdiction—home State, significant

connection, more appropriate forum, and

vacuum jurisdiction. It also authorizes

courts to issue temporary relief on emer-

gency grounds. These jurisdictional bases

are discussed in the sections that follow.

Home State jurisdiction. The UCCJEA

gives home State jurisdiction priority in

initial child-custody proceedings. In doing

so, the Act conforms to the PKPA and

rejects the UCCJA’s coequal treatment of

home State and significant connection

jurisdiction. Only in cases in which a child

has no home State or the home State de-

clines jurisdiction may another court exer-

cise significant connection jurisdiction.

This change is intended to significantly

reduce the number of situations in which

more than one State has jurisdiction over

a child-custody matter. In turn, the inci-

dence of conflicting custody orders being

issued by courts in different States should

also decrease.

Under the UCCJEA, a court has home State

jurisdiction if it is located in the child’s

home State (as of the date proceedings are

commenced) or if it is located in the State

that was the child’s home State within 6

months of the proceedings’ commence-

ment and the child’s parent (or a person

acting as his or her parent) continues to

live in the State even after the child has

been removed. This extended home State

rule allows a left-behind parent to com-

mence a custody proceeding within 6

months of a child’s removal from the

home State.

Example. A 2-year-old child, born and

raised in Minnesota, is abducted by his

mother before either parent has filed for

custody. The boy and his mother move to

Idaho. The left-behind father may file for

an initial custody determination in Min-

nesota (which has home State jurisdiction)

within 6 months of the child’s removal.

The child’s absence from Minnesota does

not deprive the State of jurisdiction. If the

mother commences a custody proceeding

in Idaho while Minnesota is the child’s

home State under the UCCJEA, the father

can seek dismissal of the Idaho proceed-

ing based on lack of jurisdiction. Assum-

ing the notice requirements of section 108

are met, any order the father obtains in

Minnesota is entitled to enforcement in

Idaho.

Significant connection jurisdiction.

When a child has no home State or when

a home State declines jurisdiction,

an-

other State court may exercise jurisdic-

tion if the child has sufficient ties to the

State and substantial evidence concerning

the child is available in the State. A child

need not be physically present in a State

for the State to exercise significant connec-

tion jurisdiction. More than one State may

have jurisdiction on this basis, but only

one State may exercise jurisdiction.

The

statute resolves the conflict in favor of the

first-filed proceeding. However, the courts

are required to communicate, and the

court in the State of the first-filed proceed-

ing may defer to the court in the second

State following judicial communication.

Example. A father and his child go to visit

the child’s paternal grandparents in Colo-

rado. The father is reminded of the beauty

of the mountains and decides not to re-

turn to Iowa, where his marriage had

been faltering and his job prospects have

dimmed. The family had been living in

Iowa for 4 years. Within 2 months of his

arrival in Colorado, the father files for

custody there on significant connection

grounds. The Colorado court lacks juris-

diction and may not proceed to the merits

of the case unless Iowa, the child’s home

State, declines jurisdiction in favor of Col-

orado. However, if the mother does not

commence a custody proceeding in Iowa

within 6 months of the child’s removal,

Colorado becomes the child’s home State

and the Colorado court may then exercise

jurisdiction and decide custody.

Example. A mother and father are high-

tech professionals who have moved fre-

quently during the previous several years

to work for Internet companies. After 4

months in California, the father leaves the

mother and their infant and returns to

North Carolina, where the family had lived

for 5 months preceding their move to Cal-

ifornia. The infant has been in daycare

and has pediatricians and relatives in

both States. The father’s cross-country

move prompts the couple to assess the

viability of their marriage, and they decide

to divorce. However, they cannot agree on

custody, and the mother and father simul-

taneously commence separate custody

proceedings in California and North Car-

olina. The parents have not lived in any

State long enough for their child to have

established a home State. Both California

and North Carolina arguably have signifi-

cant connection jurisdiction, but under

the UCCJEA only one of them should exer-

cise it. If a court learns from the required

pleadings

that a proceeding has been

commenced in a sister State, the court is

required by the UCCJEA to stay its pro-

ceeding and communicate with the other

court

to decide which proceeding should

continue. If they cannot agree, the court

with the first-filed case may move forward

and the other court should dismiss its

proceeding.

More appropriate forum jurisdiction.

Under the UCCJEA, a third basis for initial

jurisdiction exists when both the home

State and significant connection State(s)

decline jurisdiction in favor of another,

more appropriate State on grounds of

inconvenient forum or unjustifiable

conduct.

Example. The parents of a 10-year-old girl

are separated but have not filed for cus-

tody. Pursuant to her parents’ informal

agreement, the girl remains with the fa-

ther in the District of Columbia, where she

goes to school. She spends the majority of

her time with a housekeeper because her

father is frequently out of town on busi-

ness. The child spends one weekend a

month in West Virginia with her mother.

Because the mother works a night shift

involving frequent overtime, many of the

girl’s weekend visits are spent at the

homes of friends in her mother’s neigh-

borhood. Both sets of the child’s grand-

parents live in Maryland. The father plans

to move to Maryland at the end of the

school year so the child can go to her

grandparents after school, and he has a

contract to purchase a house in Maryland

when the school year ends. However,

before the move, the father becomes

increasingly concerned about the moth-

er’s absence during the child’s visits. He

files for custody in Maryland. Based on

these facts, it is conceivable that courts in

the District of Columbia (the child’s home

State) and West Virginia (a significant con-

nection State) might decline jurisdiction in

favor of Maryland, the child’s soon-to-be

home State. A decision to decline jurisdic-

tion is discretionary and fact dependent.

Vacuum jurisdiction. Similar to the

UCCJA, the UCCJEA provides that if no

court has home State, significant connec-

tion, or more appropriate forum jurisdic-

tion, an alternate court may fill the vacu-

um and exercise jurisdiction over an

initial custody proceeding.

This provi-

sion would apply to situations in which

children fail to remain in any State long

enough to form attachments (e.g., home-

less children, children of migrant workers

or military personnel, or children sent

from relative to relative for temporary

care).

Temporary emergency jurisdiction.

Under the UCCJEA, courts have tempo-

rary emergency jurisdiction when a child

in the State has been abandoned or when

emergency protection is necessary be-

cause a child—or a sibling or parent of

the child—has been subjected to or is

threatened with mistreatment or abuse.

The UCCJEA narrows the UCCJA’s defini-

tion of “emergency” by excluding neglect

cases—thus bringing it into conformity

with the PKPA—while expanding the defi-

nition to cover emergencies that put a

child’s parent or sibling at risk, such as

those covered by the VAWA.

Under the UCCJEA, courts may exercise

emergency jurisdiction and make tempo-

rary orders even if a proceeding has been

commenced in another State. Immediate

judicial communication is mandatory to

resolve the emergency, protect the safety

of the parties and the child, and deter-

mine how long a temporary order should

remain in effect.

Notice and opportunity to be heard must

be given

for a temporary emergency

order to be enforceable in other States

pursuant to the UCCJEA and PKPA. At a

minimum, both laws require that notice be

provided to any parent whose parental

rights have not been terminated and to

any person with physical custody of the

child. Temporary custody or visitation

provisions in a protection order that was

obtained ex parte (i.e., without notice) are

unenforceable in sister States under the

UCCJEA and the PKPA. These provisions,

however, may be enforceable within the

issuing State if domestic violence laws or

other laws so provide.

The duration of a temporary emergency

custody order depends on whether cus-

tody has been or is being litigated else-

where. If there is no prior custody order

that is enforceable under the UCCJEA and

no proceeding has been commenced in a

court with jurisdiction, the temporary

emergency custody order becomes a final

determination (if it so provides) when

the issuing State becomes the child’s

home State (i.e., in 6 months). Notice

must have been given in accordance with

the UCCJEA. If a previous order exists

and/or a custody proceeding has been

commenced in a court with jurisdiction,

the temporary emergency custody order

must specify an adequate period within

which the person seeking emergency re-

lief may obtain a custody order from the

other court. The temporary order remains

in effect until a custody order is obtained

from the other State (within the specified

period) or the specified period expires.

Example. Following a fight with her hus-

band, a battered wife takes the couple’s

child from their Texas home to Utah and

seeks refuge at a domestic violence shel-

ter. In Utah, the mother files for custody

of the child on emergency jurisdiction

grounds. She gives her husband the requi-

site notice, but in the interest of safety,

asks the court not to disclose her ad-

dress to him.

The child’s father does not

respond to the suit. The court in Utah

grants the mother temporary custody,

stipulating that the order will become per-

manent after 6 months if no proceeding is

commenced in Texas, the child’s home

State. The father, however, commences a

custody proceeding in Texas soon after

receiving notice of the Utah action. The

mother receives notice of the proceeding

via her attorney, and she petitions the

Texas court to decline jurisdiction in favor

of Utah on inconvenient forum grounds.

The two courts communicate. The Texas

court grants the mother’s motion on find-

ing that domestic violence has occurred

and is likely to continue and that Utah can

best protect the mother and child.

Fol-

lowing a hearing on the merits in the Utah

court, the temporary Utah order is made

permanent. The mother is granted cus-

tody, and the father is granted limited,

supervised visitation.

Modification Jurisdiction

The UCCJEA addresses courts’ jurisdic-

tion to modify existing child-custody or

visitation determinations in two comple-

mentary sections: section 202 establishes

rules of continuing jurisdiction in the

decree-granting State, and section 203

governs when another State may modify

an existing decree.

Exclusive, continuing jurisdiction. The

UCCJEA adopted a rule of exclusive, con-

tinuing jurisdiction similar to that in the

PKPA.

Under the UCCJEA, an original

decree court that exercised jurisdiction

consistent with the Act has exclusive, con-

tinuing jurisdiction to modify its decree

until one of the following occurs:

◆ The original decree court loses signifi-

cant connection jurisdiction.

◆ The child, the child’s parents, and any

person acting as the child’s parent no

longer live in the State.

Only the decree State may determine

whether it has significant connection ju-

risdiction. That is, a sister State’s court

may not substitute its judgment on this

issue for that of the decree State’s court.

By contrast, either State court may deter-

mine that all parties identified in the

statute have left the State.

Jurisdiction to modify determination.

If an original decree State has exclusive,

continuing jurisdiction, no other State

may modify the decree State’s custody

order—even if the child moves and estab-

lishes a new home State. (In such a sce-

nario, the noncustodial parent usually

remains in the original decree State.) A

court in the child’s new home State (or

any other State) cannot modify the initial

decree unless the original decree State

loses exclusive, continuing jurisdiction or

declines to exercise it on inconvenient

forum grounds, and then only if the child’s

new home State has jurisdiction under the

UCCJEA.

These requirements are intend-

ed to eliminate the practice under the

UCCJA in which a child’s original home

State and new home State both assert

modification jurisdiction, which is likely

to result in conflicting custody orders and

confusion as to which order takes prec-

edence.

Conflicting orders have also

caused many law enforcement officers to

refuse help in enforcing an order because

of uncertainty as to its validity.

Example. Following proceedings in Kansas

(the child’s home State), the child’s father

is granted custody. The mother moves to

Oklahoma, where the child spends extend-

ed visits over summers and holidays. Two

years later, when the child reaches school

age, the mother refuses to return the child

to Kansas at the end of the summer and

enrolls the child in an elementary school

in Oklahoma. She also files an action in

Oklahoma to modify the Kansas order,

seeking full custody of the child. The fa-

ther challenges the Oklahoma court’s ju-

risdiction and moves to dismiss the suit

on grounds that Kansas has exclusive,

continuing jurisdiction. He also seeks

return of the child pursuant to the Kansas

order. The father prevails based on the

UCCJEA and the PKPA. Both statutes

require enforcement of valid orders, and

the validity of the Kansas order was un-

contested. Oklahoma could not modify

the Kansas order because Kansas had

exclusive modification jurisdiction.

Declining Jurisdiction

Under the UCCJEA, a court with initial

jurisdiction; exclusive, continuing juris-

diction; or modification jurisdiction may

decline to exercise jurisdiction on two

grounds: inconvenient forum and unjus-

tifiable conduct.

Inconvenient forum. Under section 207 of

the UCCJEA, a court may, after taking into

account specified factors, determine that

another State is better able to decide cus-

tody. These factors include whether do-

mestic violence has occurred and, if so,

which State can best protect the parties

and child; how long the child has lived out

of State; where the evidence is located;

and which court is most familiar with the

case.

Example. In the Kansas-Oklahoma example

described above, the mother could peti-

tion the Kansas court to decline jurisdic-

tion on grounds of inconvenient forum.

However, the decision would be at the

court’s discretion, and the fact that the

mother wrongfully withheld the child in

Oklahoma might weigh heavily in the

court’s decision.

Unjustifiable conduct. Subject to specific

exceptions,

section 208 of the UCCJEA

requires a court to decline jurisdiction if

such jurisdiction was created by the un-

justifiable conduct of the party bringing

the action. Furthermore, the Act requires

the court to assess the wrongdoer neces-

sary and reasonable expenses

unless

that party can prove that the assessment

would be clearly inappropriate. Although

the statute does not define “unjustifiable

conduct,” examples cited in the accompa-

nying comment to section 208 include

wrongful removal, retention, or conceal-

ment of a child.

Questions may arise as to how this sec-

tion of the UCCJEA operates in domestic

violence situations. The comment to sec-

tion 208 explains that if a parent flees with

a child to escape domestic violence and

in the process violates a joint custody de-

cree, that parent’s case should not auto-

matically be dismissed. Instead, an in-

quiry must be made into whether the

flight was justified under the circum-

stances. The comment goes on to distin-

guish the case of an abusive parent who

seizes a child and flees to another State to

establish jurisdiction. In this case, he or

she has engaged in unjustifiable conduct

and the new State must decline to exer-

cise jurisdiction.

Example. Without warning, a father

snatches his son from a school bus stop

in Arizona. He takes the child to Oregon

and keeps their location hidden from the

left-behind mother for 10 months. The

boy’s mother mistakenly believes that she

cannot file for custody in Arizona (the

child’s home State) because the child is

no longer physically present there. (Had

she consulted a knowledgeable lawyer,

she would have known that the child’s

absence from Arizona did not deprive the

home State of jurisdiction as long as a

custody action was commenced within

6 months of the boy’s departure.) The

father waits 16 months before filing for an

initial custody order in Oregon and gives

the mother notice of the proceeding. She

promptly files a motion to dismiss on

grounds that the father’s conduct was

unjustifiable. The court agrees, and it

declines jurisdiction, dismisses the peti-

tion, and orders the father to pay the

mother’s attorney’s fees and investigative

costs. The mother then commences a cus-

tody action in an Arizona court, which

exercises jurisdiction on significant con-

nection grounds, the home State having

declined its jurisdiction. The mother can

then seek enforcement of the Oregon or-

der in Arizona, using any of the enforce-

ment procedures in the UCCJEA or other

procedures available in that State. The

UCCJEA and the PKPA require Arizona to

enforce the mother’s order.

Duty To Enforce Under

the UCCJEA

The UCCJEA requires State courts to rec-

ognize and enforce child-custody determi-

nations made in substantial conformity

with the jurisdictional provisions of the

Act or made under factual circumstances

that meet the jurisdictional standards of

the Act.

This basic duty to enforce is the

same as that in the UCCJA; however, a

custody order is enforceable under the

UCCJEA only if the issuing court exer-

cised jurisdiction in conformity with the

UCCJEA.

In addition to establishing a duty to en-

force sister States’ custody and visitation

orders, the UCCJEA creates five new inter-

state enforcement mechanisms. These

mechanisms, each described in this sec-

tion, supplement any other enforcement

procedures available under State law.

Registration of an out-of-State custody

determination. The UCCJEA creates a

process for registering out-of-State cus-

tody and visitation orders.

Parents and

other parties are not required to register

a custody or visitation determination but

may choose to do so for the following

reasons:

◆ Registration puts the courts of a State

on notice of an existing custody deter-

mination and of the issuing

court’s

exclusive, continuing jurisdiction.

◆ Registration is a pretest of enforceabili-

ty; that is, it can be used to obtain as-

surance that the custody determination

will be enforced in the future.

◆ Registration limits possible defenses to

enforcement at a later date, which sim-

plifies and expedites subsequent en-

forcement efforts.

◆ Uncontested registration may obviate

the need for lawyers in a case, which

would be a great benefit to parents

who cannot afford counsel.

◆ A registered order is enforceable as if

it were a local order as of the date of

registration.

The process for registering out-of-State

custody determinations is straightfor-

ward. A party sends a request for registra-

tion to a court in another State, along with

copies of the child-custody determination

and other required information. The court

files the order as a foreign judgment and

serves notice on the parent (or person

acting as a parent) who has been awarded

custody or visitation in the order. Persons

who receive notice have 20 days to re-

quest a hearing to contest the validity of

the order. If no such request is made, the

order is confirmed as a matter of law and

may be enforced as if it were a local order.

If the registration is contested, only three

defenses are available:

◆ That the court making the custody de-

termination lacked jurisdiction.

◆ That the person contesting registra-

tion was entitled to but did not receive

notice of the underlying custody pro-

ceeding in accordance with the

UCCJEA.

◆ That the child-custody determination

has been vacated, stayed, or modified.

The UCCJEA’s registration process differs

from the UCCJA provision requiring clerks

of court to maintain a registry for filing

out-of-State decrees. The UCCJA’s registry

provision was omitted from the UCCJEA.

Temporary visitation orders. Under the

UCCJEA, courts may issue temporary

orders to enforce visitation schedules in

other States’ court orders or visitation

provisions of out-of-State orders that do

not contain a specific schedule.

For in-

stance, courts may order compensatory

visitation time or give specific meaning

to another State’s award of “reasonable

visitation.”

Although this section gives judges the

authority to issue temporary orders to

facilitate visitation that might not other-

wise occur, it does not confer modification

jurisdiction to make wholesale changes

to sister States’ orders. Consistent with

the UCCJEA and the PKPA, permanent

changes to the underlying custody order

may be made only by the court with modi-

fication jurisdiction, unless that State

declines to exercise jurisdiction.

Expedited enforcement of custody de-

terminations. Sections 308–310 of the

UCCJEA create a new enforcement reme-

dy, the object of which is the immediate

recovery of a child.

It is fast and summa-

ry in nature. If there is a risk of serious

physical harm or abduction, this remedy

may be used in concert with a warrant to

take physical custody of a child (UCCJEA

section 311, as discussed below).

The UCCJEA’s expedited enforcement sec-

tions provide for an enforcement hearing,

normally within 24 hours of service (i.e.,

on the next judicial day after service). If

that date is impossible, the hearing must

be held on the first judicial day possible.

In other words, this is a priority proceed-

ing on the fastest track available.

At the hearing, the respondent has limited

defenses, the availability of which de-

pends on whether the order has been reg-

istered. If so, the only available defense is

that the order has since been vacated,

stayed, or modified. If the custody order

has not been registered, the respondent

may assert the three defenses that could

have been raised in a registration pro-

ceeding: (1) lack of jurisdiction in the is-

suing court; (2) the underlying custody

order has been vacated, stayed, or modi-

fied; and (3) lack of notice.

At the conclusion of the hearing, unless

the respondent has established a defense,

the court must issue an order authorizing

the petitioner to take immediate physical

custody of the child. Pursuant to section

312, the court must also order the re-

spondent to pay the petitioner’s neces-

sary and reasonable expenses

unless the

respondent shows that such award would

be clearly inappropriate. (If the respond-

ent had prevailed, the court would assess

the petitioner with costs and expenses be-

cause section 312 expressly provides for

an award to the “prevailing party.”) The

return order may also include a directive

for law enforcement assistance.

Warrants to take physical custody of a

child. The UCCJEA also includes a proce-

dure to ensure a child’s safety and pres-

ence in the jurisdiction when notice of an

enforcement proceeding might cause the

recipient to harm or flee with the child.

On a finding that a “child is imminently

likely to suffer serious physical harm or

be removed from the State,” section 311

specifically authorizes a court to issue a

warrant directing law enforcement officers

to take immediate physical custody of the

child.

Warrants to take physical custody of a

child (also known as “pickup” orders) are

obtained under the UCCJEA in conjunc-

tion with an enforcement action. The peti-

tioner files a verified application to obtain

a warrant to take physical custody of the

child upon filing an enforcement action.

The court must take testimony from the

petitioner or another witness. The testi-

mony may be taken by phone, in person,

or by any other means allowed under

local law. If the court finds that the child

is imminently likely to suffer serious

physical harm or be removed from the

State, the court may issue a warrant to

take physical custody of the child. The

warrant must direct law enforcement offi-

cers to pick up the child immediately, and

it must provide for the child’s placement

pending the enforcement hearing. The

respondent must be served with the peti-

tion, warrant, and order immediately after

the warrant is executed (i.e., after the

child is picked up), and the enforcement

petition must be heard on the next judicial

day unless that date is impossible.

This remedy may be especially helpful in

preventing international abductions. The

ICARA contemplates that courts hearing

Hague Convention cases may take meas-

ures under State and Federal law to pro-

tect the well-being of a child or to prevent

further removal or concealment before

final disposition of the petition. Section

311 of the UCCJEA provides the authority

to do so.

Public enforcement provisions. Sections

315–317 of the UCCJEA provide a mecha-

nism for enforcing custody and visitation

orders

that is modeled on a system that

has functioned remarkably well in Cal-

ifornia for more than 20 years with wide

support from the criminal justice commu-

nity. (See “The Role of Prosecutors and

Law Enforcement in Civil Custody Enforce-

ment: California’s Experience,” page 10.)

State legislatures may designate any pub-

lic officials they deem appropriate to im-

plement sections 315 and 316. Although

most States will select prosecutors and

law enforcement, legislatures may desig-

nate other public officials, such as a

“Friend of the Court.” California’s experi-

ence exemplifies the advantages of allow-

ing district attorneys, criminal investiga-

tors, and other law enforcement officers

to play an active part in civil enforcement

of custody determinations. The following

explanation of sections 315–317 assumes

that State legislatures have designated

prosecutors and law enforcement officers

to exercise the new discretionary powers.

Section 315(a) of the UCCJEA gives prose-

cutors statutory authority to take any law-

ful action—including instituting a proceed-

ing under article 3 or any other available

civil proceeding—to locate a child, facili-

tate a child’s return, or enforce a child-

custody determination. Any actions taken

by the prosecutor are done on behalf of

the court. The prosecutor does not repre-

sent any party.

The prosecutor may act if one of the fol-

lowing exists:

◆ A prior custody determination.

◆ A request from a court in a pending

child-custody proceeding.

◆ A reasonable belief that a criminal

statute has been violated.

◆ A reasonable belief that a child has

been wrongfully removed or retained

in violation of the Hague Convention.

Under section 315, prosecutors may re-

quest the assistance of law enforcement

officers, and section 316 expressly author-

izes them to respond to such a request.

Under section 317, prosecutors and law

enforcement agencies may recover their

direct costs and expenses from a non-

prevailing party.

The authority granted under these sec-

tions is discretionary, meaning that prose-

cutors may elect to use their new civil

authority to resolve custody and visitation

interference cases but are not required to

do so. For example, a prosecutor may opt

for civil remedies under the UCCJEA when

this approach would best serve the child

and family. Compared with criminal pro-

ceedings, civil proceedings tend to be less

traumatic for children. In all cases, prose-

cutors may choose, under State criminal

law, to prosecute the perpetrator-parent if

prosecution is in the interest of justice.

Civil and criminal remedies may be pur-

sued simultaneously in some circum-

stances. In short, the UCCJEA adds civil

remedies to the tools prosecutors already

have under criminal statutes but allows

prosecutors to choose how to proceed in

parental kidnapping cases.

Sections 315–317 offer potential advan-

tages to prosecutors, children, and par-

ents. Specifically, the provisions may:

◆ Deter abductions and encourage citi-

zens to respect the terms of court

orders.

◆ Deter self-help recoveries (“reabduc-

tions”), which can be harmful to

children and may have civil or criminal

consequences for parents.

◆ Create an interstate network of recipro-

cal assistance to resolve custodial

interference cases. This network

should result in faster resolution of

many interstate custody and visitation

disputes, thereby sparing children the

trauma of protracted custody litigation,

reducing litigation costs for parents,

and limiting more costly prosecutions

by allowing prosecutors to pursue civil

remedies.

◆ Give prosecutors the authority to assist

with civil enforcement, thereby provid-

ing custodial parents of limited finan-

cial ability lawful means by which to

secure return of their children.

◆ Involve public authorities in handling

international child-custody and visita-

tion disputes under the Hague Conven-

tion. Their involvement should improve

the United States’ standing with treaty

partners—many of whom now provide

free legal assistance to U.S. citizens

seeking return of their children from

abroad—and may foster the return of

more children who have been abducted

from this country.

◆ Give the criminal justice community

the option of using civil remedies in

interstate and international custody

and abduction cases, while leaving the

door open to prosecute the abducting

parent when circumstances warrant.

This leeway should facilitate resolution

of these difficult cases in the best inter-

ests of children and society.

Conclusion

This Bulletin has highlighted the many

ways in which nationwide enactment of

the UCCJEA would improve interstate

child-custody practice. To recap a few, the

UCCJEA adopts the PKPA’s priority for

home State jurisdiction in initial custody

cases and codifies the principle of exclu-

sive, continuing jurisdiction. These pro-

visions will clarify where child-custody

proceedings should be brought and sub-

stantially reduce the number of competing

custody proceedings in sister States. The

UCCJEA also includes the following inno-

vative enforcement mechanisms: the expe-

dited enforcement procedure, the warrant

to take physical custody of a child, and

the public officials sections of the Act, all

of which should result in swifter, more

streamlined, and more predictable inter-

state enforcement of custody and visita-

tion orders. The UCCJEA’s new interstate

jurisdictional rules and procedures reflect

sensitivity to the safety needs of parents

and children who are the victims of do-

mestic violence.

Readers interested in promoting enact-

ment of the UCCJEA in their State should

contact the Governor’s office and members

of the Judiciary Committees in their State

legislature to request action on the legisla-

tion. Legislative packets and copies of the

law may be obtained from NCCUSL. (Con-

tact information for NCCUSL appears in

the “For Further Information” section.)

Once the UCCJEA is enacted, its success

will depend on lawyers using it wisely,

courts interpreting it uniformly, and pub-

lic officials using the law’s new tools ef-

fectively to minimize the harmful effects

children endure when they are pawns in

interjurisdictional custody battles.

District attorneys and law enforcement

officers in California have had the statu-

tory authority to intervene in civil child

custody enforcement cases for more

than 20 years.The UCCJEA’s “public

officials” provisions are modeled on

California law. Although California’s en-

actment of the UCCJEA has changed

some enforcement practices,

it is useful

to examine the extensive pre-UCCJEA

experience of California’s prosecutors

and law enforcement officers in these

cases.

A California prosecutor seeking to re-

cover a child being wrongfully kept in

another State (in violation of a custody

determination) may evaluate the case

to determine whether to initially proceed

criminally or civilly. The prosecutor will

consider several factors in determining

his or her approach. Factors affecting

the decision include the following:

◆

Facts surrounding the abduction.

◆

Evidence that the child is in danger.

◆

The child’s age.

◆

Date the child was initially taken.

◆

The likelihood that the child will be

removed from the country.

◆

Concealment of the child.

◆

Allegations or evidence of domestic

violence or child abuse.

◆

The criminal history of both parties.

◆

The probability of recovering the

child without pressing criminal

charges against the abductor.

◆

The assistance available from the

other State without pressing criminal

charges.

The Role of Prosecutors and Law Enforcement in Civil Custody Enforcement:

California’s Experience

◆

The likelihood of flight.

◆

The health and welfare of the child.

Although the prosecutor may initially

choose a civil approach, he or she re-

tains the discretion to proceed criminally

against the abductor if the facts and cir-

cumstances warrant (e.g., where facts are

uncovered that indicate that the child may

be endangered or abused).

Under civil enforcement, once the abduct-

ing parent and the child are located, the

district attorney may contact the abduct-

ing parent by telephone, explain the law,

and request a voluntary return. If the

abducting parent refuses to cooperate or

if such contact may trigger flight and con-

cealment of the child, the district attorney

will secure an order from the California

court directing the district attorney to re-

cover the child. This order gives the dis-

trict attorney temporary custody of the

child for the purpose of the child’s recov-

ery and designates temporary placement

of the child. (The court may order the

child placed with the left-behind parent, in

foster care, or otherwise, depending on

the facts and circumstances of the case.)

The district attorney (or criminal investiga-

tor working with the district attorney) then

contacts the law enforcement agency and

the court in the jurisdiction where the

child is located to arrange for pickup of

the child (and to inquire about a UCCJEA

enforcement proceeding, if applicable).

The district attorney ascertains the pro-

cedures and requirements of the law en-

forcement agency and the court regarding

enforcement practices and any other per-

tinent issues, such as arrangements for

overnight shelter and care.

If the law enforcement agency is coopera-

tive, pickup of the child generally goes

smoothly. If a court hearing is required,

the presence and/or testimony of the dis-

trict attorney’s investigator may be suffi-

cient for the court to order the return of

the child with the investigator. If the local

law enforcement agency is not coopera-

tive or if an enforcement action is re-

quired, the district attorney may retain a

lawyer (at State expense) to bring the

action under local law.

In predecree abduction cases (i.e.,

when there is no custody determination

at the time of the abduction), the district

attorney usually requires the left-behind

parent to initiate a custody proceeding.

However, the district attorney can file

the appropriate initial pleading in certain

cases.

In cooperation with the California State

Attorney General, California district

attorneys also play an important role in

international child abduction cases in-

volving the Hague Convention. When a

child is abducted to California from a

Hague Convention country, the district

attorney may seek the voluntary return

of the child or pursue a court action

under the Convention for the return of

the child. When a child is abducted from

California to a Hague Convention coun-

try, the district attorney is involved in

locating the child and may file an appli-

cation with the U.S. Department of

State or directly with the foreign Central

Authority under the Hague Convention

seeking the child’s return.

Based on California’s experience, the

cost of using prosecutors and law en-

forcement in the civil enforcement of

custody matters should be modest.

Using civil remedies to resolve custodial

interference cases typically costs less

than prosecuting wrongdoer parents. In

1989, the California Controller’s Office

paid counties $3.3 million for their work

in 5,890 cases statewide. The 1991–92

budget was also $3.3 million, but prose-

cutors assisted in almost 8,000 cases

of civil custody enforcement and recov-

ered 3,000 abducted children. The vol-

ume of cases has grown since then,

with corresponding increases in State

spending, as more counties have be-

come involved in civil custody enforce-

ment. Other States can expect to spend

less than California because California,

the most populous State, probably has

the highest volume of custodial interfer-

ence cases in the country.

One of the most important changes since enact-

ment of the UCCJEA is the increase in interstate

judicial communication to address jurisdictional and

enforcement issues.

For Further Information

For additional information on the UCCJEA,

readers may contact the organizations

listed and described below. Brief descrip-

tions of selected publications available

from each organization are also provided.

Organizations

American Bar Association (ABA)

Center on Children and the Law

740 15th Street NW., Ninth Floor

Washington, DC 20005–1009

202–662–1720

202–662–1755 (fax)

[email protected]g

www.abanet.org/child

The ABA Center on Children and the Law

concentrates on legal issues that directly

affect children. The Center’s Obstacles to

the Recovery and Return of Parentally

Abducted Children Project, funded by

OJJDP and directed by Linda Girdner,

Ph.D., documented problems that parents

face when children are abducted inter-

state and internationally. Among the many

recommendations contained in the origi-

nal Obstacles Project’s final report was

the need for streamlined, uniform proce-

dures to expedite interstate enforcement

of custody and visitation orders. In fur-

therance of that goal, the Obstacles Proj-

ect’s Legal Director, Patricia M. Hoff, J.D.,

served as an advisor to the UCCJEA

drafting committee. Although the Center

currently has no ongoing projects related

to parental kidnapping, its Web site in-

cludes an extensive collection of literature

about parental kidnapping and links to

other resources.

American Bar Association (ABA)

Section of Family Law

750 North Lake Shore Drive

Chicago, IL 60611–4497

Attn: Jeff Atkinson, ABA advisor to the

UCCJEA drafting committee

312–988–5000

www.abanet.org/family/home.html

The ABA is the largest voluntary associa-

tion of lawyers in the United States, and

its Section of Family Law is devoted to

stabilizing and preserving the family. The

spring 1998 issue of Family Law Quarterly,

one of the section’s two publications,

focused on two uniform laws that affect

children and families: the UCCJEA and the

Uniform Interstate Family Support Act.

The ABA advisor to the UCCJEA drafting

committee, Jeff Atkinson, is an active

member of the Section of Family Law.

National Center for Missing and

Exploited Children (NCMEC)

Charles B. Wang International Children’s

Building

699 Prince Street

Alexandria, VA 22314–3175

800–843–5678

703–274–2220 (fax)

77431.177@Compuserve.com

www.missingkids.com

NCMEC is a private, nonprofit clearing-

house that was established in 1984 and

operates under a congressional mandate.

A resource center for child protection,

NCMEC collects and distributes informa-

tion on missing and exploited children

and operates a national toll-free hotline,

800–THE–LOST (800–843–5678), for indi-

viduals to report missing children or re-

quest information. NCMEC assists fami-

lies and can be of tremendous help to law

enforcement in case management, case

tracking, lead and information analysis,

and coordination of responses across

jurisdictional lines.

National Center for Prosecution of Child

Abuse (NCPCA)

99 Canal Center Plaza, Suite 510

Alexandria, VA 22314

703–739–0321

703–549–6259 (fax)

www.ndaa-apri.org/apri/NCPCA/Index.html

The National Center for Prosecution of

Child Abuse recognizes child abuse as a

crime for which perpetrators must be

held accountable. Because no area of

criminal justice has changed so rapidly in

the past 15 years, the need for profession-

al specialization is especially great. Com-

mitted to excellence in training, technical

assistance, and publications, the National

Center for Prosecution of Child Abuse is

meeting that need. In cooperation with

prosecutors and other child abuse profes-

sionals in the United States and interna-

tionally, the Center demonstrates concern

for a particularly vulnerable group of

crime victims based on the premise that

children are entitled to equal treatment

under the law.

National Conference of Commissioners

on Uniform State Laws (NCCUSL)

211 East Ontario Street, Suite 1300

Chicago, IL 60611

312–915–0195

312–915–0187 (fax)

www.nccusl.org

For more than 100 years, NCCUSL has pro-

moted uniformity in State law and inter-

state cooperation by developing uniform

acts and endeavoring to secure their en-

actment by the voluntary action of each

State government. The conference in-

cludes commissioners from each State,

the District of Columbia, the Common-

wealth of Puerto Rico, and the U.S. Virgin

Islands. Drafting committees made up of

A Prosecutor’s Perspective

As a general proposition, California’s prosecutors and law enforcement officers are

very supportive of the dual civil/criminal approach to custodial interference cases. In

1992, when the State was making programmatic cuts to reduce its deficit, strong

statewide support from the criminal justice community fended off an effort to cut a

program that implemented this approach. A district attorney with expertise in child

abduction cases sums up why the program was well received by California’s crimi-

nal justice community and why the UCCJEA should be supported:

As a prosecutor assigned to the Child Abduction Unit of the Santa Clara

County D.A.’s Office for the past 6 years, I can personally attest to the incalcu-

lable value of the availability of civil, as well as criminal, enforcement tools in

resolving interstate child abduction cases. This office alone has recovered ap-

proximately 1,777 children in the last 10 years. The ability to act in a civil con-

text has been an important factor in recovery of these children. In the majority

of the custody and visitation disputes I have handled, resolving the issues

without criminal proceedings has clearly served the best interests of the chil-

dren involved. Other states do not have the same ability to serve and recover

their children. The most effective deterrent to child abduction in this country

would be the nationwide network of law enforcement and prosecutors this bill

[the UCCJEA] would create.

J.M. Heim, Deputy District Attorney, Child Abduction Unit, Santa Clara County, CA, personal communication,

March 1996, to Justice Marian Opala, Chair, UCCJEA Drafting Committee, in support of the prosecutor/law

enforcement sections of the UCCJEA.

commissioners are appointed to draft spe-

cific acts, and advisors and observers

often participate in the drafting process.

A draft uniform act must be read, section

by section, at no fewer than two annual

meetings before a decision is made, by

vote of States, to promulgate the act as a

Uniform Act.

NCCUSL approved the UCCJEA in 1997.

Copies of the law are available from

NCCUSL’s Chicago address and may be

downloaded from the NCCUSL Web site

(www.nccusl.org).

Office of Juvenile Justice and

Delinquency Prevention (OJJDP)

Child Protection Division (CPD)

810 Seventh Street NW.

Washington, DC 20531

202–616–3637

202–353–9093 (fax)

www.ojjdp.ncjrs.org

OJJDP’s Child Protection Division admin-

isters programs related to crimes against

children and provides leadership and

funding in the areas of enforcement, inter-

vention, and prevention. CPD promotes

effective policies and procedures to ad-

dress the problems of abused, neglected,

missing, and exploited children. Activities

include conducting research, providing

training and technical assistance, and

supporting demonstration and service

programs related to child victimization.

CPD also supports the National Center

for Missing and Exploited Children (see

above), a clearinghouse and resource

center that collects and distributes data

regarding missing and exploited children

and operates a national toll-free hotline

(800–843–5678).

Publications

ABA Center on Children and the Law.

The following documents are available

from the Center (see Issues/Parental

Kidnapping on its Web site).

Hague Child Abduction Convention Issue

Briefs. This 1997 material consists of four

issue briefs that can help attorneys han-

dle cases that fall under the Hague Con-

vention on the Civil Aspects of Inter-

national Child Abduction.

The Hague Convention: A Curriculum for

American Judges and Lawyers. This 1997

publication explains how the Hague Con-

vention can be used effectively within the

United States in international parental

kidnapping cases.

Parental Kidnapping: Prevention and

Remedies. This paper is designed to help

attorneys better understand parental

abduction cases and applicable laws. It

includes practical tips on protections that

can be placed in child custody orders

that may help prevent an abduction, tips

that lawyers can give their parent clients,

a review of possible legal actions that can

be taken on parents’ behalf, and govern-

mental resources that can be used to help

in these cases.

Parental Kidnapping Law Reform Package

(consists of three proposed State laws:

Parental Kidnapping Crime Act, Missing

Children Record Flagging Act, and Tor-

tious Interference With Child Custody

and Visitation Act). This package, pro-

duced in 1996, contains three proposed

State laws related to parental abduction

that can be adopted by State legislatures.

ABA Section of Family Law. The following

document is available from the Section

(see Publications on its Web site).

International Child Abductions: A Guide to

Applying the 1988 Hague Convention, With

Forms, Second Edition. This guide provides

all the basic information needed to invoke

and apply the Hague Convention and the

forms necessary for its use.

NCMEC. The following documents are

available from NCMEC (see Education

& Resources on its Web site or call

800–843–5678).

Family Abduction. This handbook guides

parents through the civil and criminal jus-

tice systems, explains the laws that will

help them, outlines prevention methods,

and provides suggestions for aftercare

following the abduction. It thoroughly

details search and recovery strategies

and contains advice for attorneys, prose-

cutors, and family court judges handling

these cases.

International Forum on Parental Child

Abduction: Hague Convention Action

Agenda. This report details the findings

of a forum held in September 1998 to

study the Hague Convention on the Civil

Aspects of International Child Abduction.

It offers 12 action/agenda items to help

strengthen the implementation of the

Hague Convention.

“The Kid Is With a Parent, How Bad Can It

Be?”: The Crisis of Family Abductions. This

issue brief discusses the seriousness of

the problem of family abduction, consid-

ers whether the problem is growing, and

examines the challenges and opportuni-

ties this crime poses to policymakers.

Missing and Abducted Children: A Law-

Enforcement Guide to Case Investigation

and Program Management. This guide,

authored by a team of 38 professionals

from local, State, and Federal agencies,

outlines a standard of practice for law

enforcement officers handling several

types of missing child cases, including

runaways, thrownaways, family/nonfamily

abductions, and disappearances in which

the circumstances are unknown.

When Your Child Is Missing: A Family

Survival Guide. Also available from

OJJDP; see page 13 for description.

NCPCA. The following documents are

available from NCPCA (see Publications

on its Web site).

Charging the Parental Kidnapping Case.

This monograph assists prosecutors in

determining appropriate charges and sen-

tencing recommendations. It notes that an

aggressive investigative and prosecutorial

approach sends the message that paren-

tal kidnapping is a serious crime with

serious consequences for both victims

and abductors and recommends that

prosecution be seriously considered in

every parental kidnapping case.

Investigation and Prosecution of Parental

Abduction, 2000 (Training Conference

Notebook). This notebook contains train-

ing materials compiled for the 2000

NCPCA Conference, Investigation and

Prosecution of Parental Abduction.

Parental Kidnapping, Domestic Violence and

Child Abuse: Changing Legal Responses to

Related Violence. This monograph assists

investigators and prosecutors in develop-

ing appropriate responses to the inter-

related crimes of parental kidnapping,

domestic violence, and child abuse.

NCCUSL. Copies of acts, drafts, and legis-

lation are available from NCCUSL (see

NCCUSL Acts, Drafts & Legislation on its

Web site).

OJJDP. The following documents are avail-

able from OJJDP (see Publications on its

Web site or call the Juvenile Justice Clear-

inghouse at 800–638–8736) or from the

National Criminal Justice Reference Serv-

ice (visit www.ncjrs.org or call

800–851–3420).

Addressing Confidentiality of Records in

Searches for Missing Children (NCJ 155183).

This Report makes recommendations

concerning law enforcement agencies’

access to records maintained by schools,

hospitals, child welfare agencies, domes-

tic violence shelters, and runaway shel-

ters. The Report also covers information

release procedures and includes a check-

list for maximizing record access from

service providers. The Report’s appen-

dixes contain additional information and

other relevant statistical data on the con-

fidentiality of records in searches for

missing children, jurisdictions that allow

record access or impose reporting re-

quirements in missing children cases,

and State laws affecting record access.

The Criminal Justice System’s Response to

Parental Abduction (NCJ 186160). This

Bulletin summarizes primary findings

from a study of the criminal justice sys-

tem’s response to parental abduction.

Funded by OJJDP and conducted jointly

by the American Bar Association Center

on Children and the Law and Westat, the

study examined all aspects of the system’s

response, including the reporting of the

incident, investigation of the case, loca-

tion and recovery of the child, and crimi-

nal prosecution of the abductor. The Bul-

letin reports results from the study’s

national survey of law enforcement agen-

cies and prosecutors, site visits, and case

file reviews and presents implications for

legal, programmatic, and policy reforms.

Early Identification of Risk Factors for

Parental Abduction (NCJ 185026). This

Bulletin presents the design and findings

of four OJJDP-funded projects on prevent-

ing family abductions: a documentary

study, a criminal sanctions study, an

interview study, and an intervention

study. The findings provide information

regarding the risk factors associated with

parental kidnapping and strategies that

can be used to intervene with at-risk

families.

Family Abductors: Descriptive Profiles and

Preventive Interventions (NCJ 182788). This

Bulletin describes preventive interventions,

such as counseling, conflict resolution, and

legal strategies, that seek to settle custody

and access disputes for families identified

as at risk for parental abduction.

A Family Resource Guide on International

Parental Kidnapping (NCJ 190448). This

guide presents practical and detailed

advice about preventing international kid-

napping and increasing the chance that

children who are kidnapped or wrongfully

retained will be returned. It provides de-

scriptions and realistic assessments of

the civil and criminal remedies availa-

ble in international parental kidnapping

cases, explains applicable laws and identi-

fies both the public and private resources

that may be called upon when an interna-

tional abduction occurs or is threatened,

and prepares parents for the legal and

emotional difficulties they may experience.

International Parental Kidnapping: A Law

Enforcement Guide (forthcoming). This

guide provides practical information on

the public and private resources and

services that are available to assist law

enforcement in international parental

abduction cases. It explains applicable

laws, defines agency roles and responsi-

bilities, describes criminal and civil reme-

dies, examines methods for prevention

and interception, and discusses impor-

tant issues and procedures to be ad-

dressed during an international parental

abduction case.

Issues in Resolving Cases of International

Child Abduction (NCJ 182790). This Report

documents a lack of uniformity in the

application of the Hague Convention

across countries. It includes case histo-

ries, survey findings on left-behind par-

ents, selected practices in international

family abduction cases, and recommenda-

tions for the judicial and legal systems.

Issues in Resolving Cases of International

Child Abduction by Parents (NCJ 190105).

This Bulletin provides an overview of the

major survey findings, selected good

practices, and recommendations from

the Report Issues in Resolving Cases of

International Child Abduction (see previous

entry).

Obstacles to the Recovery and Return of

Parentally Abducted Children (Report: NCJ

144535; Research Summary: NCJ 143458).

These publications present the results of

a 2-year study of the legal, policy, proce-

dural, and practical obstacles to the loca-

tion, recovery, and return of parentally

abducted children. They include recom-

mendations to overcome each obstacle

and extensive appendixes that describe

the pros and cons of existing legal proce-

dures for enforcing a custody order, sam-

ple forms to be used with existing legal

procedures, and summaries of both civil

and criminal appellate decisions.

Parental Abduction: A Review of the

Literature (Available online only: ojjdp.

ncjrs.org/pubs/missing.html#186160).

This online resource summarizes current

research and literature relating to the

primary issues involved in parental

abduction.

Prevention of Parent or Family Abduction

Through Early Identification of Risk Factors

(NCJ 182791). Based on analyses of data

from several California studies related to

child abductions by a noncustodial par-

ent, this Report outlines a set of charac-

teristics of parents who abduct their

children and presents indepth socio-

demographic and legal information

about the families of abducted children.

Using Agency Records To Find Missing

Children: A Guide for Law Enforcement

(NCJ 154633). This Summary focuses on

procedures for obtaining and using the

records of certain types of human service

providers to find missing children. It ex-

amines the use of, access to, barriers to

securing, and limitations of records from

schools, medical care providers, runaway

shelters, and domestic violence shelters.

When Your Child Is Missing: A Family

Survival Guide (NCJ 170022; Spanish ver-

sion: NCJ 178902). This guide, written by

parents and family members who have

experienced the disappearance of a child,

explains how parents can best participate

in the search for a missing child. It dis-

cusses the parents’ relationship with

law enforcement, examines issues related

to the media, and presents practical in-

formation about distributing fliers and

photos, organizing volunteers, and man-

aging monetary donations.

Bibliography

Gonzalez, R.M., Tumonis, E.F., and Dun-

ham, R. 1998. Attorney General Child Ab-

duction Reference Manual. Sacramento,

CA: State of California Department of

Justice, Office of the Attorney General.

Hoff, P.M. 1998. The ABC’s of the UCCJEA:

Interstate child-custody practice under

the new act. Family Law Quarterly 32(2):

267–299.

Spector, R.G. 1998. Uniform Child-Custody

Jurisdiction and Enforcement Act (with

Prefatory Note and Comments). Family

Law Quarterly 32(2):301–384.

Endnotes

1. Uniform Child-Custody Jurisdiction and

Enforcement Act (1997), 9(1A) U.L.A. 657

(1999). The text is accessible online at

www.nccusl.org.

2. Uniform Child Custody Jurisdiction Act,

9(1A) U.L.A. 271 (1999).

3. Alabama, Alaska, Arizona, Arkansas, Cali-

fornia, Colorado, Connecticut, the District

of Columbia, Georgia, Idaho, Iowa, Kansas,

Maine, Minnesota, Montana, New Mexico,

North Carolina, North Dakota, Oklahoma,

Oregon, Tennessee, Texas, Utah, Virginia,

Washington, and West Virginia.

4. Florida, Hawaii, Illinois, Indiana, Mary-

land, Mississippi, Missouri, New Jersey,

New York, and Rhode Island.

5. The terms “child-custody determina-

tion,” “custody determination,” and

“order,” as used in this Bulletin, refer to

custody determinations and visitation

determinations.

6. Parental Kidnapping Prevention Act of

1980, 28 U.S.C. § 1738A.

7. Violence Against Women Act of 1994;

Violence Against Women Act of 2000, 18

U.S.C. §§ 2265, 2266.

8. The complete text of the Hague Conven-

tion can be found at 51 Fed. Reg. 10,494 et

seq. (1986) or online via the U.S. Depart-

ment of State’s Web site at www.travel.

state.gov, under “International Parental

Child Abduction.”

9. International Child Abduction Remedies

Act, 42 U.S.C. § 11601 et seq.

10. Uniform Child Custody Jurisdiction

Act, Prefatory Note. The Full Faith and

Credit clause requires that full faith and

credit “be given in each state to the public

acts, records, and judicial proceedings

of every other state” (U.S. Constitution,

article IV, § 1).

11. Id.

12. Girdner, L.K., and Hoff, P.M., eds. 1993.

Final Report: Obstacles to the Recovery and

Return of Parentally Abducted Children.

Washington, DC: American Bar Associ-

ation Center on Children and the Law

(hereinafter Obstacles Project Final Re-

port). The Obstacles Project Final Report

was considered by the UCCJEA drafting

committee, and numerous recommenda-

tions from the report are reflected in the

uniform act. In addition to suggesting

amendments to the UCCJA and the PKPA,

the Obstacles Project Final Report pro-

posed an original “Act To Expedite En-

forcement of Child Custody Determina-

tions.” The purpose of the statute was to

alleviate the shortcomings and lack of uni-

formity in then-existing procedures for

enforcing child-custody and visitation

orders that had frustrated many parents

trying to exercise their lawful court-

ordered rights. Article 3 of the UCCJEA

incorporates many ideas from the

proposed statute.

13. 28 U.S.C. § 1738A, “Full Faith and Credit

Given to Child Custody Determinations.”

14. 28 U.S.C. § 1738A(d). This section es-

tablishes the principle of “exclusive, con-

tinuing jurisdiction.”

15. 28 U.S.C. § 1738A(g). This section pro-

hibits simultaneous proceedings.

16. 28 U.S.C. § 1738A(e).

17. Like the UCCJA, the PKPA defines

“home State” as the State in which a child

has lived with a parent or person acting

as a parent for at least 6 months preced-

ing the commencement of a child-custody

proceeding.

18. See endnote 12, supra.

19. See endnotes 6–9, supra.

20. 18 U.S.C. § 2266. The VAWA’s definition

of “protection order” expressly excludes

child-custody orders issued pursuant to

State child-custody laws (except to the

extent that they are entitled to Full Faith

and Credit under Federal law).

21. As of July 2001, the Hague Convention

was in force between the United States

and 49 countries. For a complete list of

countries that are party to the Conven-

tion, see the U.S. Department of State’s

Web site (www.travel.state.gov) or the

Hague Conference on Private International

Law’s Web site (www.hcch.net).

22. The Hague Convention, ratified in

1986, took effect in the United States in

1988 following enactment of the Interna-

tional Child Abduction Remedies Act.

23. UCCJA, section 1 (Purposes of Act;

Construction of Provisions). The UCCJEA

omitted a “purposes” clause for stylistic

reasons: NCCUSL no longer includes claus-

es of this type in its uniform acts. The offi-

cial comments note, however, that many

of the original purposes of the UCCJA

remain valid.

24. In re Michelle Lemond, 413 N.E.2d 228

(Ind. 1980). An extraordinary judicial

panel—consisting of the Supreme Court of

Indiana; the Court of Appeals of Indiana,

First District; and the Chief Judge of the

Court of Appeals—held two judges, a pri-

vate attorney, and a county prosecutor in

indirect criminal contempt for willfully

and intentionally disobeying orders of the

State Supreme Court and the mandate of

the Court of Appeals in an interstate cus-

tody enforcement case brought pursuant

to the UCCJA. Each judge and lawyer was

fined $500 and charged with costs. The

contempt proceeding stemmed from a

custody dispute between a mother in

Hawaii and her ex-husband, who retained

custody of their daughter in Indiana.

Proceeding in accordance with the UCCJA,

the mother sought to enforce the Ha-

waiian court order in Indiana. The father

resisted at every level of the State’s

courts.

After 3 years of litigation, the mother final-

ly prevailed; the father had exhausted his

remedies in the State courts, and it was

expected that the orders of the State Su-

preme Court and the Court of Appeals

would be honored and the child returned

to her mother. However, the father’s coun-

sel staged an 11th hour attempt to shield

his client from the orders of Indiana’s high-

est courts by initiating the filing of a CHINS

(Child In Need of Services) petition by the

county prosecutor in juvenile court. The

juvenile court issued the CHINS petition

minutes before the Circuit Court’s issu-

ance of a writ of habeas corpus ordering

the return of the child to her mother.

However, the Circuit Judge assisted the

father’s efforts by ordering that the writ

not be executed for 4 hours and then dis-

qualifying himself from hearing the CHINS

petition. A new judge was named to hear

the CHINS petition, and it was this judge

who found the daughter in need of servi-

ces and ordered that she be detained for a

mental examination.

Characterizing the sole legal issue in the

contempt proceeding as whether the juve-

nile court’s jurisdiction was properly in-

voked, the courts in this case held that

they would “not tolerate the attempted

use of emergency jurisdiction to reopen a

fully litigated and decided custody battle”

(413 N.E.2d at 245). The courts “became

convinced that [the CHINS hearing] was

not a good faith effort to help a child in

need of services. Rather, it was a well-

orchestrated effort to thwart the orders

of these Courts by prostituting the emer-

gency authority of a juvenile court” (id. at

238). The juvenile court judge should have

recognized the CHINS petition for what it

was: “nothing more than a pretense for

the judge assuming jurisdiction,” a sham

designed to avoid the force and effect of

the writ (id. at 242).

25. 716 P.2d 991 (Cal. 1986), rev’d, 484 U.S.

400, 107 S. Ct. 2433 (1987).

26. UCCJEA, section 102(4) (definition of

“child-custody proceeding”).

27. UCCJEA, section 201 (Initial Child-

Custody Jurisdiction).

28. UCCJEA, section 202 (Exclusive, Con-

tinuing Jurisdiction). See also UCCJEA,

section 102(13), which defines a “person

acting as a parent” as “a person, other

than a parent, who: (A) has physical cus-

tody of the child or has had physical

custody for a period of six consecutive

months, including any temporary absence,

within one year immediately before the

commencement of a child-custody pro-

ceeding; and (B) has been awarded legal

custody by a court or claims a right to

legal custody under the law of this State.”

29. UCCJEA, section 204 (Temporary Emer-

gency Jurisdiction).

30. UCCJEA, section 207 (Inconvenient

Forum).

31. UCCJEA, section 208 (Jurisdiction De-

clined by Reason of Conduct).

32. UCCJEA, section 304 (Temporary

Visitation).

33. UCCJEA, section 305 (Registration of

Child-Custody Determination).

34. UCCJEA, sections 308–310 (Expedited

Enforcement of Child-Custody Determina-

tion; Service of Petition and Order; Hear-

ing and Order).

35. UCCJEA, section 311 (Warrant To Take

Physical Custody of Child).

36. UCCJEA, sections 315–317 (Role of

[Prosecutor or Public Official]; Role of

[Law Enforcement]; Costs and Expens-

es). In States that enact these sections,

prosecutors (or other designated public

officials) and law enforcement officers

are able to use the procedures to locate

children, return them to the jurisdiction

of the court, and enforce custody

determinations.

37. UCCJEA, section 102(4) (definition of

“child-custody proceeding”).

38. UCCJEA, section 102(3)(d). See com-

ment to UCCJEA, section 102: “By exclud-

ing proceedings involving monetary obli-

gations, this Act continues the notion of

divided jurisdiction. A court may well

have jurisdiction to dissolve the marriage

or to make an order for child support

without having jurisdiction to make a cus-

tody determination. For a recent case, see

Stevens v. Stevens, 682 N.E.2d 1309 (Ind.

Ct. App. 1997).”

39. UCCJEA, section 103 (Proceedings

Governed by Other Law).

40. UCCJEA, section 102(3). Temporary

orders are expressly included in the

UCCJEA’s definition of “child-custody de-

termination.” This definition is consistent

with the PKPA definition and clarifies an

ambiguity in section 2(2) of the UCCJA.

41. UCCJEA, section 105 (International

Application of [Act]).

42. 51 Fed. Reg. 10,510.

43. UCCJEA, section 104 (Application to

Indian Tribes).

44. UCCJEA, section 201(c). Personal juris-

diction over a party or a child is neither

necessary nor sufficient to make a cus-

tody determination.

45. See UCCJEA, section 201(a)(2)(A) and

(B), which provide that significant connec-

tion jurisdiction exists when “(A) the child

and the child’s parents, or the child and at

least one parent or a person acting as a

parent, have a significant connection with

this State other than mere physical pres-

ence; and (B) substantial evidence is avail-

able in this State concerning the child’s

care, protection, training, and personal

relationships; . . . .”

46. Under the UCCJEA, a court with juris-

diction may decline to exercise it if anoth-

er State is a more convenient forum (sec-

tion 207) or the petitioner has engaged in

unjustifiable conduct (section 208).

47. UCCJEA, section 206 (Simultaneous

Proceedings), part (a).

48. UCCJEA, section 206 (Simultaneous

Proceedings), part (b); section 110 (Com-

munication Between Courts).

49. UCCJEA, section 209 (Information To

Be Submitted to Court).

50. UCCJEA, section 206 (Simultaneous

Proceedings), part (b).

51. UCCJEA, section 201(a)(3).

52. UCCJEA, section 201(a)(4).

53. UCCJEA, section 204.

54. UCCJEA, section 205(a), and PKPA, 28

U.S.C. § 1738A(e).

55. UCCJEA, sections 209(a) and (e) pro-

tect against disclosure of addresses and

other identifying information in the plead-

ings when disclosure would jeopardize a

child’s or a party’s health, safety, or liber-

ty. If a State has adequate protections in

existing law, it may reference them in sec-

tion (a) and delete section (e).

56. UCCJEA, section 207(b)(1).

57. UCCJEA, section 202 (Exclusive, Con-

tinuing Jurisdiction).

58. UCCJEA, section 203 (Jurisdiction To

Modify Determination).

59. The UCCJA prohibition against simulta-

neous proceedings was designed to pre-

vent this situation, but courts in two or

more States often proceed with their cus-

tody actions and issue conflicting orders

notwithstanding the statutory prohibition.

60. UCCJEA, section 208(a)(1), (2), (3).

61. UCCJEA, section 208(c). Necessary and

reasonable expenses include costs, com-

munication expenses, attorney’s fees, in-

vestigative fees, expenses for witnesses,

travel expenses, and childcare expenses

during the course of the proceedings.

62. UCCJEA, section 303 (Duty To

Enforce).

63. See endnote 33, supra.

64. See comment to UCCJEA, section 305,

which gives as an example a foreign par-

ent seeking an advance determination of

whether a foreign custody order will be

recognized and enforced before sending a

child to the United States for visitation.

65. This author favors retaining a child-

custody registry provision in State enact-

ments of the UCCJEA. For a detailed dis-

cussion of this issue, see Hoff, 1998.

66. See endnote 32, supra.

67. See endnote 34, supra.

68. Recoverable costs include communica-

tion expenses, attorney’s fees, investiga-

tive fees, expenses for witnesses, travel

expenses, and childcare expenses during

the course of the proceedings.

69. UCCJEA, section 311 (Warrant To Take

Physical Custody of Child).

70. UCCJEA, section 315 (Role of [Prose-

cutor or Public Official]).

71. This statutory authority should re-

move the threat of civil liability that influ-

ences many law enforcement decisions in

child recovery situations.

U.S. Department of Justice

Office of Justice Programs

Office of Juvenile Justice and Delinquency Prevention

Washington, DC 20531

Official Business

Penalty for Private Use $300

NCJ 189181

Bulletin

PRESORTED STANDARD

POSTAGE & FEES PAID

DOJ/OJJDP

PERMIT NO. G–91

Acknowledgments

This Bulletin was written by Patricia M. Hoff, J.D., a legal consultant on interstate

and international child-custody, visitation, and parental kidnapping law. She was an

advisor to the drafting committee of the UCCJEA on behalf of the ABA Center on

Children and the Law while serving as Legal Director of the Center’s Obstacles to

the Recovery and Return of Parentally Abducted Children Project. The author

gratefully acknowledges the contribution of Janet Heim, J.D., Deputy District

Attorney, Santa Clara County District Attorney’s Office, who wrote the Bulletin’s

sidebars on California prosecutors’ long-time involvement in civil child-custody

enforcement. The author also thanks Linda Girdner, Ph.D., former Director of

Research at the ABA Center on Children and the Law and Project Director of the

Obstacles Project, for her thoughtful comments on the Bulletin as it was being

developed.

Points of view or opinions expressed in this document are those of the author and

have not been approved by the House of Delegates or the Board of Governors of

the American Bar Association. The views, accordingly, should not be construed as

representing the official position or policies of the ABA.

This Bulletin is intended for educational and informational purposes and does not

constitute legal advice. Readers with specific cases should consult their legal

counsel.

This Bulletin was prepared under grant number

92–MC–CX–0007 from the Office of Juvenile

Justice and Delinquency Prevention, U.S. De-

partment of Justice.

Points of view or opinions expressed in this

document are those of the author and do not

necessarily represent the official position or

policies of OJJDP or the U.S. Department of

Justice.

The Office of Juvenile Justice and Delin-

quency Prevention is a component of the Of-

fice of Justice Programs, which also includes

the Bureau of Justice Assistance, the Bureau

of Justice Statistics, the National Institute of

Justice, and the Office for Victims of Crime.