Child Custody / Jurisdiction

UNIFORM CHILD CUSTODY JURISDICTION
AND ENFORCEMENT ACT (1997)

Drafted by the

NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS

and by it

APPROVED AND RECOMMENDED FOR
ENACTMENT IN ALL THE STATES

at its

ANNUAL CONFERENCE
MEETING IN ITS ONE-HUNDRED-AND-SIXTH YEAR
IN SACRAMENTO, CALIFORNIA
JULY 25 - AUGUST 1, 1997


WITH PREFATORY NOTE AND COMMENTS


COPYRIGHT 1997
By
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS UNIFORM CHILD CUSTODY JURISDICTION
AND ENFORCEMENT ACT (1997)


The Committee that acted for the National Conference of Commissioners on
Uniform State Laws in preparing the Uniform Child Custody Jurisdiction and
Enforcement Act (1997) was as follows:

MARIAN P. OPALA, Supreme Court, Room 238, State Capitol, Oklahoma City,
OK, 73105, Chair
DEBORAH E. BEHR, Office of Attorney General, Department of Law,
P.O. Box 110300, Juneau, AK 99811
ROBERT N. DAVIS, University of Mississippi, School of Law, University, MS 38677
ROBERT L. MCCURLEY, JR., Alabama Law Institute, P.O. Box 861425, Tuscaloosa,
AL 35486
DOROTHY J. POUNDERS, 47 N. Third Street, Memphis, TN 38103
BATTLE R. ROBINSON, Family Court Building, 22 The Circle, Georgetown, DE 19947
HARRY L. TINDALL, 2800 Texas Commerce Tower, 600 Travis Street, Houston,
TX 77002
LEWIS V. VAFIADES, P.O. Box 919, 23 Water Street, Bangor, ME 04402
MARTHA LEE WALTERS, Suite 220, 975 Oak Street, Eugene, OR 97401
ROBERT G. SPECTOR, University of Oklahoma College of Law, 300 Timberdell Road,
Norman, OK 73019, Reporter

EX OFFICIO
BION M. GREGORY, Office of Legislative Counsel, State Capitol, Suite 3021,
Sacramento, CA 95814-4996, President
DAVID PEEPLES, 224th District Court, Bexar County Courthouse, 100 Dolorosa,
San Antonio, TX 78205, Chair, Division F

EXECUTIVE DIRECTOR
FRED H. MILLER, University of Oklahoma, College of Law, 300 Timberdell Road,
Norman, OK 73019, Executive Director
WILLIAM J. PIERCE, 1505 Roxbury Road, Ann Arbor, MI 48104,
Executive Director Emeritus



Copies of this Act may be obtained from:

NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
676 North St. Clair Street, Suite 1700
Chicago, Illinois 60611
312/915-0195 UNIFORM CHILD-CUSTODY JURISDICTION
AND ENFORCEMENT ACT (1997)


PREFATORY NOTE

This Act, the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA), revisits the problem of the interstate child almost thirty years after the
Conference promulgated the Uniform Child Custody Jurisdiction Act (UCCJA).
The UCCJEA accomplishes two major purposes.

First, it revises the law on child custody jurisdiction in light of federal
enactments and almost thirty years of inconsistent case law. Article 2 of this Act
provides clearer standards for which States can exercise original jurisdiction over a
child custody determination. It also, for the first time, enunciates a standard of
continuing jurisdiction and clarifies modification jurisdiction. Other aspects of the
article harmonize the law on simultaneous proceedings, clean hands, and forum non
conveniens.

Second, this Act provides in Article 3 for a remedial process to enforce
interstate child custody and visitation determinations. In doing so, it brings a
uniform procedure to the law of interstate enforcement that is currently producing
inconsistent results. In many respects, this Act accomplishes for custody and
visitation determinations the same uniformity that has occurred in interstate child
support with the promulgation of the Uniform Interstate Family Support Act
(UIFSA).


Revision of Uniform Child Custody Jurisdiction Act

The UCCJA was adopted as law in all 50 States, the District of Columbia,
and the Virgin Islands. A number of adoptions, however, significantly departed
from the original text. In addition, almost thirty years of litigation since the
promulgation of the UCCJA produced substantial inconsistency in interpretation by
state courts. As a result, the goals of the UCCJA were rendered unobtainable in
many cases.

In 1980, the federal government enacted the Parental Kidnaping Prevention
Act (PKPA), 28 U.S.C.  1738A, to address the interstate custody jurisdictional
problems that continued to exist after the adoption of the UCCJA. The PKPA
mandates that state authorities give full faith and credit to other states' custody
determinations, so long as those determinations were made in conformity with the
provisions of the PKPA. The PKPA provisions regarding bases for jurisdiction,
restrictions on modifications, preclusion of simultaneous proceedings, and notice
requirements are similar to those in the UCCJA. There are, however, some
significant differences. For example, the PKPA authorizes continuing exclusive
jurisdiction in the original decree State so long as one parent or the child remains
there and that State has continuing jurisdiction under its own law. The UCCJA did
not directly address this issue. To further complicate the process, the PKPA
partially incorporates state UCCJA law in its language. The relationship between
these two statutes became "technical enough to delight a medieval property
lawyer." Homer H. Clark, Domestic Relations  12.5 at 494 (2d ed. 1988).

As documented in an extensive study by the American Bar Association's
Center on Children and the Law, Obstacles to the Recovery and Return of
Parentally Abducted Children (1993) (Obstacles Study), inconsistency of
interpretation of the UCCJA and the technicalities of applying the PKPA, resulted
in a loss of uniformity among the States. The Obstacles Study suggested a number
of amendments which would eliminate the inconsistent state interpretations and
harmonize the UCCJA with the PKPA.

The revisions of the jurisdictional aspects of the UCCJA eliminate the
inconsistent state interpretations and can be summarized as follows:

1. Home state priority. The PKPA prioritizes "home state" jurisdiction by
requiring that full faith and credit cannot be given to a child custody determination
by a State that exercises initial jurisdiction as a "significant connection state" when
there is a "home State." Initial custody determinations based on "significant
connections" are not entitled to PKPA enforcement unless there is no home State.
The UCCJA, however, specifically authorizes four independent bases of
jurisdiction without prioritization. Under the UCCJA, a significant connection
custody determination may have to be enforced even if it would be denied
enforcement under the PKPA. The UCCJEA prioritizes home state jurisdiction in
Section 201.

2. Clarification of emergency jurisdiction. There are several problems
with the current emergency jurisdiction provision of the UCCJA  3(a)(3). First,
the language of the UCCJA does not specify that emergency jurisdiction may be
exercised only to protect the child on a temporary basis until the court with
appropriate jurisdiction issues a permanent order. Some courts have interpreted the
UCCJA language to so provide. Other courts, however, have held that there is no
time limit on a custody determination based on emergency jurisdiction.
Simultaneous proceedings and conflicting custody orders have resulted from these
different interpretations.

Second, the emergency jurisdiction provisions predated the widespread
enactment of state domestic violence statutes. Those statutes are often invoked to
keep one parent away from the other parent and the children when there is a threat
of violence. Whether these situations are sufficient to invoke the emergency
jurisdiction provision of the UCCJA has been the subject of some confusion since
the emergency jurisdiction provision does not specifically refer to violence directed
against the parent of the child or against a sibling of the child.

The UCCJEA contains a separate section on emergency jurisdiction at
Section 204 which addresses these issues.

3. Exclusive continuing jurisdiction for the State that entered the
decree. The failure of the UCCJA to clearly enunciate that the decree-granting
State retains exclusive continuing jurisdiction to modify a decree has resulted in
two major problems. First, different interpretations of the UCCJA on continuing
jurisdiction have produced conflicting custody decrees. States also have different
interpretations as to how long continuing jurisdiction lasts. Some courts have held
that modification jurisdiction continues until the last contestant leaves the State,
regardless of how many years the child has lived outside the State or how tenuous
the child's connections to the State have become. Other courts have held that
continuing modification jurisdiction ends as soon as the child has established a new
home State, regardless of how significant the child's connections to the decree State
remain. Still other States distinguish between custody orders and visitation orders.
This divergence of views leads to simultaneous proceedings and conflicting
custody orders.

The second problem arises when it is necessary to determine whether the
State with continuing jurisdiction has relinquished it. There should be a clear basis
to determine when that court has relinquished jurisdiction. The UCCJA provided
no guidance on this issue. The ambiguity regarding whether a court has declined
jurisdiction can result in one court improperly exercising jurisdiction because it
erroneously believes that the other court has declined jurisdiction. This caused
simultaneous proceedings and conflicting custody orders. In addition, some courts
have declined jurisdiction after only informal contact between courts with no
opportunity for the parties to be heard. This raised significant due process
concerns. The UCCJEA addresses these issues in Sections 110, 202, and 206.

4. Specification of what custody proceedings are covered. The
definition of custody proceeding in the UCCJA is ambiguous. States have rendered
conflicting decisions regarding certain types of proceedings. There is no general
agreement on whether the UCCJA applies to neglect, abuse, dependency, wardship,
guardianship, termination of parental rights, and protection from domestic violence
proceedings. The UCCJEA includes a sweeping definition that, with the exception
of adoption, includes virtually all cases that can involve custody of or visitation
with a child as a "custody determination."

5. Role of "Best Interests." The jurisdictional scheme of the UCCJA was
designed to promote the best interests of the children whose custody was at issue by
discouraging parental abduction and providing that, in general, the State with the
closest connections to, and the most evidence regarding, a child should decide that
child's custody. The "best interest" language in the jurisdictional sections of the
UCCJA was not intended to be an invitation to address the merits of the custody
dispute in the jurisdictional determination or to otherwise provide that "best
interests" considerations should override jurisdictional determinations or provide an
additional jurisdictional basis.

The UCCJEA eliminates the term "best interests" in order to clearly
distinguish between the jurisdictional standards and the substantive standards
relating to custody and visitation of children.

6. Other Changes. This draft also makes a number of additional
amendments to the UCCJA. Many of these changes were made to harmonize the
provisions of this Act with those of the Uniform Interstate Family Support Act.
One of the policy bases underlying this Act is to make uniform the law of interstate
family proceedings to the extent possible, given the very different jurisdictional
foundations. It simplifies the life of the family law practitioner when the same or
similar provisions are found in both Acts.


Enforcement Provisions

One of the major purposes of the revision of the UCCJA was to provide a
remedy for interstate visitation and custody cases. As with child support, state
borders have become one of the biggest obstacles to enforcement of custody and
visitation orders. If either parent leaves the State where the custody determination
was made, the other parent faces considerable difficulty in enforcing the visitation
and custody provisions of the decree. Locating the child, making service of
process, and preventing adverse modification in a new forum all present problems.

There is currently no uniform method of enforcing custody and visitation
orders validly entered in another State. As documented by the Obstacles Study,
despite the fact that both the UCCJA and the PKPA direct the enforcement of
visitation and custody orders entered in accordance with mandated jurisdictional
prerequisites and due process, neither act provides enforcement procedures or
remedies.

As the Obstacles Study pointed out, the lack of specificity in enforcement
procedures has resulted in the law of enforcement evolving differently in different
jurisdictions. In one State, it might be common practice to file a Motion to Enforce
or a Motion to Grant Full Faith and Credit to initiate an enforcement proceeding.
In another State, a Writ of Habeas Corpus or a Citation for Contempt might be
commonly used. In some States, Mandamus and Prohibition also may be utilized.
All of these enforcement procedures differ from jurisdiction to jurisdiction. While
many States tend to limit considerations in enforcement proceedings to whether the
court which issued the decree had jurisdiction to make the custody determination,
others broaden the considerations to scrutiny of whether enforcement would be in
the best interests of the child.

Lack of uniformity complicates the enforcement process in several ways:
(1) It increases the costs of the enforcement action in part because the services of
more than one lawyer may be required one in the original forum and one in the
State where enforcement is sought; (2) It decreases the certainty of outcome; (3) It
can turn enforcement into a long and drawn out procedure. A parent opposed to the
provisions of a visitation determination may be able to delay implementation for
many months, possibly even years, thereby frustrating not only the other parent, but
also the process that led to the issuance of the original court order.

The provisions of Article 3 provide several remedies for the enforcement of
a custody determination. First, there is a simple procedure for registering a custody
determination in another State. This will allow a party to know in advance whether
that State will recognize the party's custody determination. This is extremely
important in estimating the risk of the child's non-return when the child is sent on
visitation. The provision should prove to be very useful in international custody
cases.

Second, the Act provides a swift remedy along the lines of habeas corpus.
Time is extremely important in visitation and custody cases. If visitation rights
cannot be enforced quickly, they often cannot be enforced at all. This is
particularly true if there is a limited time within which visitation can be exercised
such as may be the case when one parent has been granted visitation during the
winter or spring holiday period. Without speedy consideration and resolution of the
enforcement of such visitation rights, the ability to visit may be lost entirely.
Similarly, a custodial parent must be able to obtain prompt enforcement when the
noncustodial parent refuses to return a child at the end of authorized visitation,
particularly when a summer visitation extension will infringe on the school year. A
swift enforcement mechanism is desirable for violations of both custody and
visitation provisions.

The scope of the enforcing court's inquiry is limited to the issue of whether
the decree court had jurisdiction and complied with due process in rendering the
original custody decree. No further inquiry is necessary because neither Article 2
nor the PKPA allows an enforcing court to modify a custody determination.

Third, the enforcing court will be able to utilize an extraordinary remedy. If
the enforcing court is concerned that the parent, who has physical custody of the
child, will flee or harm the child, a warrant to take physical possession of the child
is available.

Finally, there is a role for public authorities, such as prosecutors, in the
enforcement process. Their involvement will encourage the parties to abide by the
terms of the custody determination. If the parties know that public authorities and
law enforcement officers are available to help in securing compliance with custody
determinations, the parties may be deterred from interfering with the exercise of
rights established by court order.

The involvement of public authorities will also prove more effective in
remedying violations of custody determinations. Most parties do not have the
resources to enforce a custody determination in another jurisdiction. The
availability of the public authorities as an enforcement agency will help ensure that
this remedy can be made available regardless of income level. In addition, the
public authorities may have resources to draw on that are unavailable to the average
litigant.

This Act does not authorize the public authorities to be involved in the
action leading up to the making of the custody determination, except when
requested by the court, when there is a violation of the Hague Convention on the
Civil Aspects of International Child Abduction, or when the person holding the
child has violated a criminal statute. The Act does not mandate that public
authorities be involved in all cases. Not all States, or local authorities, have the
funds necessary for an effective custody and visitation enforcement program.

UNIFORM CHILD-CUSTODY JURISDICTION
AND ENFORCEMENT ACT (1997)



[ARTICLE] 1
GENERAL PROVISIONS


SECTION 101. SHORT TITLE. This [Act] may be cited as the Uniform
Child-Custody Jurisdiction and Enforcement Act.

Comment

Section 1 of the UCCJA was a statement of the purposes of the Act.
Although extensively cited by courts, it was eliminated because Uniform Acts no
longer contain such a section. Nonetheless, this Act should be interpreted
according to its purposes which are 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;

(2) Promote cooperation with the courts of other States to the end that a
custody decree is rendered in that State which can best decide the case in the
interest of the child;

(3) Discourage the use of the interstate system for continuing controversies
over child custody;

(4) Deter abductions of children;

(5) Avoid relitigation of custody decisions of other States in this State;

(6) Facilitate the enforcement of custody decrees of other States;


SECTION 102. DEFINITIONS. In this [Act]:

(1) "Abandoned" means left without provision for reasonable and necessary
care or supervision.

(2) "Child" means an individual who has not attained 18 years of age.

(3) "Child-custody determination" means a judgment, decree, or other order
of a court providing for the legal custody, physical custody, or visitation with
respect to a child. The term includes a permanent, temporary, initial, and
modification order. The term does not include an order relating to child support or
other monetary obligation of an individual.

(4) "Child-custody proceeding" means a proceeding in which legal custody,
physical custody, or visitation with respect to a child is an issue. The term includes
a proceeding for divorce, separation, neglect, abuse, dependency, guardianship,
paternity, termination of parental rights, and protection from domestic violence, in
which the issue may appear. The term does not include a proceeding involving
juvenile delinquency, contractual emancipation, or enforcement under [Article] 3.

(5) "Commencement" means the filing of the first pleading in a proceeding.

(6) "Court" means an entity authorized under the law of a State to establish,
enforce, or modify a child-custody determination.

(7) "Home State" means the State in which a child lived with a parent or a
person acting as a parent for at least six consecutive months immediately before the
commencement of a child-custody proceeding. In the case of a child less than six
months of age, the term means the State in which the child lived from birth with
any of the persons mentioned. A period of temporary absence of any of the
mentioned persons is part of the period.

(8) "Initial determination" means the first child-custody determination
concerning a particular child.

(9) "Issuing court" means the court that makes a child-custody
determination for which enforcement is sought under this [Act].

(10) "Issuing State" means the State in which a child-custody determination
is made.

(11) "Modification" means a child-custody determination that changes,
replaces, supersedes, or is otherwise made after a previous determination
concerning the same child, whether or not it is made by the court that made the
previous determination.

(12) "Person" means an individual, corporation, business trust, estate, trust,
partnership, limited liability company, association, joint venture, government;
governmental subdivision, agency, or instrumentality; public corporation; or any
other legal or commercial entity.

(13) "Person acting as a parent" means a person, other than a parent, who:

(A) has physical custody 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 proceeding; and

(B) has been awarded legal custody by a court or claims a right to legal
custody under the law of this State.

(14) "Physical custody" means the physical care and supervision of a child.

(15) "State" means a State of the United States, the District of Columbia,
Puerto Rico, the United States Virgin Islands, or any territory or insular possession
subject to the jurisdiction of the United States.

[(16) "Tribe" means an Indian tribe or band, or Alaskan Native village,
which is recognized by federal law or formally acknowledged by a State.]

(17) "Warrant" means an order issued by a court authorizing law
enforcement officers to take physical custody of a child.

Comment

The UCCJA did not contain a definition of "child." The definition here is
taken from the PKPA.

The definition of "child-custody determination" now closely tracks the
PKPA definition. It encompasses any judgment, decree or other order which
provides for the custody of, or visitation with, a child, regardless of local
terminology, including such labels as "managing conservatorship" or "parenting
plan."

The definition of "child-custody proceeding" has been expanded from the
comparable definition in the UCCJA. These listed proceedings have generally been
determined to be the type of proceeding to which the UCCJA and PKPA are
applicable. The list of examples removes any controversy about the types of
proceedings where a custody determination can occur. Proceedings that affect
access to the child are subject to this Act. The inclusion of proceedings related to
protection from domestic violence is necessary because in some States domestic
violence proceedings may affect custody of and visitation with a child. Juvenile
delinquency or proceedings to confer contractual rights are not "custody
proceedings" because they do not relate to civil aspects of access to a child. While
a determination of paternity is covered under the Uniform Interstate Family Support
Act, the custody and visitation aspects of paternity cases are custody proceedings.
Cases involving the Hague Convention on the Civil Aspects of International Child
Abduction have not been included at this point because custody of the child is not
determined in a proceeding under the International Child Abductions Remedies
Act. Those proceedings are specially included in the Article 3 enforcement
process.

"Commencement" has been included in the definitions as a replacement for
the term "pending" found in the UCCJA. Its inclusion simplifies some of the
simultaneous proceedings provisions of this Act.

The definition of "home State" has been reworded slightly. No substantive
change is intended from the UCCJA.

The term "issuing State" is borrowed from UIFSA. In UIFSA, it refers to
the court that issued the support or parentage order. Here, it refers to the State, or
the court, which made the custody determination that is sought to be enforced. It is
used primarily in Article 3.

The term "person" has been added to ensure that the provisions of this Act
apply when the State is the moving party in a custody proceeding or has legal
custody of a child. The definition of "person" is the one that is mandated for all
Uniform Acts.

The term "person acting as a parent" has been slightly redefined. It has
been broadened from the definition in the UCCJA to include a person who has
acted as a parent for a significant period of time prior to the filing of the custody
proceeding as well as a person who currently has physical custody of the child. In
addition, a person acting as a parent must either have legal custody or claim a right
to legal custody under the law of this State. The reference to the law of this State
means that a court determines the issue of whether someone is a "person acting as a
parent" under its own law. This reaffirms the traditional view that a court in a child
custody case applies its own substantive law. The court does not have to undertake
a choice-of-law analysis to determine whether the individual who is claiming to be
a person acting as a parent has standing to seek custody of the child.

The definition of "tribe" is the one mandated for use in Uniform Acts.
Should a State choose to apply this Act to tribal adjudications, this definition
should be enacted as well as the entirety of Section 104.

The term "contestant" as has been omitted from this revision. It was
defined in the UCCJA  2(1) as "a person, including a parent, who claims a right to
custody or visitation rights with respect to a child." It seems to have served little
purpose over the years, and whatever function it once had has been subsumed by
state laws on who has standing to seek custody of or visitation with a child. In
addition UCCJA  2(5) of the which defined "decree" and "custody decree" has
been eliminated as duplicative of the definition of "custody determination."


SECTION 103. PROCEEDINGS GOVERNED BY OTHER LAW. This
[Act] does not govern an adoption proceeding or a proceeding pertaining to the
authorization of emergency medical care for a child.

Comment

Two proceedings are governed by other acts. Adoption cases are excluded
from this Act because adoption is a specialized area which is thoroughly covered by
the Uniform Adoption Act (UAA) (1994). Most States either will adopt that Act or
will adopt the jurisdictional provisions of that Act. Therefore the jurisdictional
provisions governing adoption proceeding are generally found elsewhere.

However, there are likely to be a number of instances where it will be
necessary to apply this Act in an adoption proceeding. For example, if a State
adopts the UAA then Section 3-101 of the Act specifically refers in places to the
Uniform Child Custody Jurisdiction Act which will become a reference to this Act.
Second, the UAA requires that if an adoption is denied or set aside, the court is to
determine the child's custody. UAA  3-704. Those custody proceedings would be
subject to this Act. See Joan Heifetz Hollinger, The Uniform Adoption Act:
Reporter's Ruminations, 30 Fam.L.Q. 345 (1996).

Children that are the subject of interstate placements for adoption or foster
care are governed by the Interstate Compact on the Placement of Children (ICPC).
The UAA  2-107 provides that the provisions of the compact, although not
jurisdictional, supply the governing rules for all children who are subject to it. As
stated in the Comments to that section: "Once a court exercises jurisdiction, the
ICPC helps determine the legality of an interstate placement." For a discussion of
the relationship between the UCCJA and the ICPC see J.D.S. v. Franks, 893 P.2d
732 (Ariz. 1995).

Proceedings pertaining to the authorization of emergency medical care for
children are outside the scope of this Act since they are not custody determinations.
All States have procedures which allow the State to temporarily supersede parental
authority for purposes of emergency medical procedures. Those provisions will
govern without regard to this Act.


SECTION 104. APPLICATION TO INDIAN TRIBES.

(a) A child-custody proceeding that pertains to an Indian child as defined in
the Indian Child Welfare Act, 25 U.S.C.  1901 et seq., is not subject to this [Act]
to the extent that it is governed by the Indian Child Welfare Act.

[(b) A court of this State shall treat a tribe as if it were a State of the United
States for the purpose of applying [Articles] 1 and 2.]

[(c) A child-custody determination made by a tribe under factual
circumstances in substantial conformity with the jurisdictional standards of this
[Act] must be recognized and enforced under [Article] 3.]

Comment

This section allows States the discretion to extend the terms of this Act to
Indian tribes by removing the brackets. The definition of "tribe" is found at Section
102(16). This Act does not purport to legislate custody jurisdiction for tribal
courts. However, a Tribe could adopt this Act as enabling legislation by simply
replacing references to "this State" with "this Tribe."

Subsection (a) is not bracketed. If the Indian Child Welfare Act requires
that a case be heard in tribal court, then its provisions determine jurisdiction.


SECTION 105. INTERNATIONAL APPLICATION OF [ACT].

(a) A court of this State shall treat a foreign country as if it were a State of
the United States for the purpose of applying [Articles] 1 and 2.

(b) Except as otherwise provided in subsection (c), a child-custody
determination made in a foreign country under factual circumstances in substantial
conformity with the jurisdictional standards of this [Act] must be recognized and
enforced under [Article] 3.

(c) A court of this State need not apply this [Act] if the child custody law of
a foreign country violates fundamental principles of human rights.

Comment

The provisions of this Act have international application to child custody
proceedings and determinations of other countries. Another country will be treated
as if it were a State of the United States for purposes of applying Articles 1 and 2 of
this Act. Custody determinations of other countries will be enforced if the facts of
the case indicate that jurisdiction was in substantial compliance with the
requirements of this Act.

In this section, the term "child-custody determination" should be interpreted
to include proceedings relating to custody or analogous institutions of the other
country. See generally, Article 3 of The Hague Convention on Jurisdiction,
Applicable Law, Recognition, Enforcement and Co-operation in Respect of
Parental Responsibility and Measures for the Protection of Children. 35 I.L.M.
1391 (1996).

A court of this State may refuse to apply this Act when the child custody
law of the other country violates basic principles relating to the protection of human
rights and fundamental freedoms. The same concept is found in of the Section 20
of the Hague Convention on the Civil Aspects of International Child Abduction
(return of the child may be refused if this would not be permitted by the
fundamental principles of the requested State relating to the protection of human
rights and fundamental freedoms). In applying subsection (c), the court's scrutiny
should be on the child custody law of the foreign country and not on other aspects
of the other legal system. This Act takes no position on what laws relating to child
custody would violate fundamental freedoms. While the provision is a traditional
one in international agreements, it is invoked only in the most egregious cases.

This section is derived from Section 23 of the UCCJA.


SECTION 106. EFFECT OF CHILD-CUSTODY DETERMINATION. A
child-custody determination made by a court of this State that had jurisdiction
under this [Act] binds all persons who have been served in accordance with the
laws of this State or notified in accordance with Section 108 or who have submitted
to the jurisdiction of the court, and who have been given an opportunity to be heard.
As to those persons, the determination is conclusive as to all decided issues of law
and fact except to the extent the determination is modified.

Comment

No substantive changes have been made to this section which was Section
12 of the UCCJA.


SECTION 107. PRIORITY. If a question of existence or exercise of
jurisdiction under this [Act] is raised in a child-custody proceeding, the question,
upon request of a party, must be given priority on the calendar and handled
expeditiously.

Comment

No substantive change was made to this section which was Section 24 of the
UCCJA. The section is placed toward the beginning of Article 1 to emphasize its
importance.

The language change from "case" to "question" is intended to clarify that it
is the jurisdictional issue which must be expedited and not the entire custody case.
Whether the entire custody case should be given priority is a matter of local law.


SECTION 108. NOTICE TO PERSONS OUTSIDE STATE.

(a) Notice required for the exercise of jurisdiction when a person is outside
this State may be given in a manner prescribed by the law of this State for service
of process or by the law of the State in which the service is made. Notice must be
given in a manner reasonably calculated to give actual notice but may be by
publication if other means are not effective.

(b) Proof of service may be made in the manner prescribed by the law of
this State or by the law of the State in which the service is made.

(c) Notice is not required for the exercise of jurisdiction with respect to a
person who submits to the jurisdiction of the court.

Comment

This section authorizes notice and proof of service to be made by any
method allowed by either the State which issues the notice or the State where the
notice is received. This eliminates the need to specify the type of notice in the Act
and therefore the provisions of Section 5 of the UCCJA which specified how notice
was to be accomplished were eliminated. The change reflects an approach in this
Act to use local law to determine many procedural issues. Thus, service by
facsimile is permissible if allowed by local rule in either State. In addition, where
special service or notice rules are available for some procedures, in either
jurisdiction, they could be utilized under this Act. For example, if a case involves
domestic violence and the statute of either State would authorize notice to be served
by a peace officer, such service could be used under this Act.

Although Section 105 requires foreign countries to be treated as States for
purposes of this Act, attorneys should be cautioned about service and notice in
foreign countries. Countries have their own rules on service which must usually be
followed. Attorneys should consult the Hague Convention on the Service Abroad
of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 20 U.S.T.
36, T.I.A.S. 6638 (1965).


SECTION 109. APPEARANCE AND LIMITED IMMUNITY.

(a) A party to a child-custody proceeding, including a modification
proceeding, or a petitioner or respondent in a proceeding to enforce or register a
child-custody determination, is not subject to personal jurisdiction in this State for
another proceeding or purpose solely by reason of having participated, or of having
been physically present for the purpose of participating, in the proceeding.

(b) A person who is subject to personal jurisdiction in this State on a basis
other than physical presence is not immune from service of process in this State. A
party present in this State who is subject to the jurisdiction of another State is not
immune from service of process allowable under the laws of that State.

(c) The immunity granted by subsection (a) does not extend to civil
litigation based on acts unrelated to the participation in a proceeding under this
[Act] committed by an individual while present in this State.

Comment

This section establishes a general principle that participation in a custody
proceeding does not, by itself, give the court jurisdiction over any issue for which
personal jurisdiction over the individual is required. The term "participate" should
be read broadly. For example, if jurisdiction is proper under Article 2, a respondent
in an original custody determination, or a party in a modification determination,
should be able to request custody without this constituting the seeking of
affirmative relief that would waive personal jurisdictional objections. Once
jurisdiction is proper under Article 2, a party should not be placed in the dilemma
of choosing between seeking custody or protecting a right not to be subject to a
monetary judgment by a court with no other relationship to the party.

This section is comparable to the immunity provision of UIFSA  314. A
party who is otherwise not subject to personal jurisdiction can appear in a custody
proceeding or an enforcement action without being subject to the general
jurisdiction of the State by virtue of the appearance. However, if the petitioner
would otherwise be subject to the jurisdiction of the State, appearing in a custody
proceeding or filing an enforcement proceeding will not provide immunity. Thus,
if the non-custodial parent moves from the State that decided the custody
determination, that parent is still subject to the state's jurisdiction for enforcement
of child support if the child or an individual obligee continues to reside there. See
UIFSA  205. If the non-custodial parent returns to enforce the visitation aspects
of the custody determination, the State can utilize any appropriate means to collect
the back-due child support. However, the situation is different if both parties move
from State A after the determination, with the custodial parent and the child
establishing a new home State in State B, and the non-custodial parent moving to
State C. The non-custodial parent is not, at this point, subject to the jurisdiction of
State B for monetary matters. See Kulko v. Superior Court, 436 U.S. 84 (1978). If
the non-custodial parent comes into State B to enforce the visitation aspects of the
determination, the non-custodial parent is not subject to the jurisdiction of State B
for those proceedings and issues requiring personal jurisdiction by filing the
enforcement action.

A party also is immune from service of process during the time in the State
for an enforcement action except for those claims for which jurisdiction could be
based on contacts other than mere physical presence. Thus, when the non-custodial
parent comes into State B to enforce the visitation aspects of the decree, State B
cannot acquire jurisdiction over the child support aspects of the decree by serving
the non-custodial parent in the State. Cf. UIFSA  611 (personally serving the
obligor in the State of the residence of the obligee is not by itself a sufficient
jurisdictional basis to authorize a modification of child support). However, a party
who is in this State and subject to the jurisdiction of another State may be served
with process to appear in that State, if allowable under the laws of that State.

As the Comments to UIFSA  314 note, the immunity provided by this
section is limited. It does not provide immunity for civil litigation unrelated to the
enforcement action. For example, a party to an enforcement action is not immune
from service regarding a claim that involves an automobile accident occurring
while the party is in the State.


SECTION 110. COMMUNICATION BETWEEN COURTS.

(a) A court of this State may communicate with a court in another State
concerning a proceeding arising under this [Act].

(b) The court may allow the parties to participate in the communication. If
the parties are not able to participate in the communication, they must be given the
opportunity to present facts and legal arguments before a decision on jurisdiction is
made.

(c) Communication between courts on schedules, calendars, court records,
and similar matters may occur without informing the parties. A record need not be
made of the communication.

(d) Except as otherwise provided in subsection (c), a record must be made
of a communication under this section. The parties must be informed promptly of
the communication and granted access to the record.

(e) For the purposes of this section, "record" means information that is
inscribed on a tangible medium or that is stored in an electronic or other medium
and is retrievable in perceivable form.

Comment

This section emphasizes the role of judicial communications. It authorizes a
court to communicate concerning any proceeding arising under this Act. This
includes communication with foreign tribunals and tribal courts. Communication
can occur in many different ways such as by telephonic conference and by on-line
or other electronic communication. The Act does not preclude any method of
communication and recognizes that there will be increasing use of modern
communication techniques.

Communication between courts is required under Sections 204, 206, and
306 and strongly suggested in applying Section 207. Apart from those sections,
there may be less need under this Act for courts to communicate concerning
jurisdiction due to the prioritization of home state jurisdiction. Communication is
authorized, however, whenever the court finds it would be helpful. The court may
authorize the parties to participate in the communication. However, the Act does
not mandate participation. Communication between courts is often difficult to
schedule and participation by the parties may be impractical. Phone calls often
have to be made after-hours or whenever the schedules of judges allow.

This section does require that a record be made of the conversation and that
the parties have access to that record in order to be informed of the content of the
conversation. The only exception to this requirement is when the communication
involves relatively inconsequential matters such as scheduling, calendars, and court
records. Included within this latter type of communication would be matters of
cooperation between courts under Section 112. A record includes notes or
transcripts of a court reporter who listened to a conference call between the courts,
an electronic recording of a telephone call, a memorandum or an electronic record
of the communication between the courts, or a memorandum or an electronic record
made by a court after the communication.

The second sentence of subsection (b) protects the parties against
unauthorized ex parte communications. The parties' participation in the
communication may amount to a hearing if there is an opportunity to present facts
and jurisdictional arguments. However, absent such an opportunity, the
participation of the parties should not to be considered a substitute for a hearing and
the parties must be given an opportunity to fairly and fully present facts and
arguments on the jurisdictional issue before a determination is made. This may be
done through a hearing or, if appropriate, by affidavit or memorandum. The court
is expected to set forth the basis for its jurisdictional decision, including any court-
to-court communication which may have been a factor in the decision.


SECTION 111. TAKING TESTIMONY IN ANOTHER STATE.

(a) In addition to other procedures available to a party, a party to a child-
custody proceeding may offer testimony of witnesses who are located in another
State, including testimony of the parties and the child, by deposition or other means
allowable in this State for testimony taken in another State. The court on its own
motion may order that the testimony of a person be taken in another State and may
prescribe the manner in which and the terms upon which the testimony is taken.

(b) A court of this State may permit an individual residing in another State
to be deposed or to testify by telephone, audiovisual means, or other electronic
means before a designated court or at another location in that State. A court of this
State shall cooperate with courts of other States in designating an appropriate
location for the deposition or testimony.

(c) Documentary evidence transmitted from another State to a court of this
State by technological means that do not produce an original writing may not be
excluded from evidence on an objection based on the means of transmission.

Comment

No substantive changes have been made to subsection (a) which was
Section 18 of the UCCJA.

Subsections (b) and (c) merely provide that modern modes of
communication are permissible in the taking of testimony and the transmittal of
documents. See UIFSA  316.


SECTION 112. COOPERATION BETWEEN COURTS;
PRESERVATION OF RECORDS.

(a) A court of this State may request the appropriate court of another State
to:

(1) hold an evidentiary hearing;

(2) order a person to produce or give evidence pursuant to procedures of
that State;

(3) order that an evaluation be made with respect to the custody of a
child involved in a pending proceeding;

(4) forward to the court of this State a certified copy of the transcript of
the record of the hearing, the evidence otherwise presented, and any evaluation
prepared in compliance with the request; and

(5) order a party to a child-custody proceeding or any person having
physical custody of the child to appear in the proceeding with or without the child.

(b) Upon request of a court of another State, a court of this State may hold
a hearing or enter an order described in subsection (a).

(c) Travel and other necessary and reasonable expenses incurred under
subsections (a) and (b) may be assessed against the parties according to the law of
this State.

(d) A court of this State shall preserve the pleadings, orders, decrees,
records of hearings, evaluations, and other pertinent records with respect to a child-
custody proceeding until the child attains 18 years of age. Upon appropriate
request by a court or law enforcement official of another State, the court shall
forward a certified copy of those records.

Comment

This section is the heart of judicial cooperation provision of this Act. It
provides mechanisms for courts to cooperate with each other in order to decide
cases in an efficient manner without causing undue expense to the parties. Courts
may request assistance from courts of other States and may assist courts of other
States.

The provision on the assessment of costs for travel provided in the UCCJA
 19 has been changed. The UCCJA provided that the costs may be assessed
against the parties or the State or county. Assessment of costs against a
government entity in a case where the government is not involved is inappropriate
and therefore that provision has been removed. In addition, if the State is involved
as a party, assessment of costs and expenses against the State must be authorized by
other law. It should be noted that the term "expenses" means out-of-pocket costs.
Overhead costs should not be assessed as expenses.

No other substantive changes have been made. The term "social study" as
used in the UCCJA was replaced with the modern term: "custody evaluation." The
Act does not take a position on the admissibility of a custody evaluation that was
conducted in another State. It merely authorizes a court to seek assistance of, or
render assistance to, a court of another State.

This section combines the text of Sections 19-22 of the UCCJA.



[ARTICLE] 2
JURISDICTION


SECTION 201. INITIAL CHILD-CUSTODY JURISDICTION.

(a) Except as otherwise provided in Section 204, a court of this State has
jurisdiction to make an initial child-custody determination only if:

(1) this State is the home State of the child on the date of the
commencement of the proceeding, or was the home State of the child within six
months before the commencement of the proceeding and the child is absent from
this State but a parent or person acting as a parent continues to live in this State;

(2) a court of another State does not have jurisdiction under paragraph
(1), or a court of the home State of the child has declined to exercise jurisdiction on
the ground that this State is the more appropriate forum under Section 207 or 208,
and:

(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 presence; and

(B) substantial evidence is available in this State concerning the
child's care, protection, training, and personal relationships;

(3) all courts having jurisdiction under paragraph (1) or (2) have
declined to exercise jurisdiction on the ground that a court of this State is the more
appropriate forum to determine the custody of the child under Section 207 or 208;
or

(4) no court of any other State would have jurisdiction under the criteria
specified in paragraph (1), (2), or (3).

(b) Subsection (a) is the exclusive jurisdictional basis for making a child-
custody determination by a court of this State.

(c) Physical presence of, or personal jurisdiction over, a party or a child is
not necessary or sufficient to make a child-custody determination.

Comment

This section provides mandatory jurisdictional rules for the original child
custody proceeding. It generally continues the provisions of the UCCJA  3.
However, there have been a number of changes to the jurisdictional bases.

1. Home State Jurisdiction. The jurisdiction of the home State has been
prioritized over other jurisdictional bases. Section 3 of the UCCJA provided four
independent and concurrent bases of jurisdiction. The PKPA provides that full
faith and credit can only be given to an initial custody determination of a
"significant connection" State when there is no home State. This Act prioritizes
home state jurisdiction in the same manner as the PKPA thereby eliminating any
potential conflict between the two acts.

The six-month extended home state provision of subsection (a)(1) has been
modified slightly from the UCCJA. The UCCJA provided that home state
jurisdiction continued for six months when the child had been removed by a person
seeking the child's custody or for other reasons and a parent or a person acting as a
parent continues to reside in the home State. Under this Act, it is no longer
necessary to determine why the child has been removed. The only inquiry relates
to the status of the person left behind. This change provides a slightly more refined
home state standard than the UCCJA or the PKPA, which also requires a
determination that the child has been removed "by a contestant or for other
reasons." The scope of the PKPA's provision is theoretically narrower than this
Act. However, the phrase "or for other reasons" covers most fact situations where
the child is not in the home State and, therefore, the difference has no substantive
effect.

In another sense, the six-month extended home state jurisdiction provision
is this Act is narrower than the comparable provision in the PKPA. The PKPA's
definition of extended home State is more expansive because it applies whenever a
"contestant" remains in the home State. That class of individuals has been
eliminated in this Act. This Act retains the original UCCJA classification of
"parent or person acting as parent" to define who must remain for a State to
exercise the six-month extended home state jurisdiction. This eliminates the
undesirable jurisdictional determinations which would occur as a result of differing
state substantive laws on visitation involving grandparents and others. For
example, if State A's law provided that grandparents could obtain visitation with a
child after the death of one of the parents, then the grandparents, who would be
considered "contestants" under the PKPA, could file a proceeding within six
months after the remaining parent moved and have the case heard in State A.
However, if State A did not provide that grandparents could seek visitation under
such circumstances, the grandparents would not be considered "contestants" and
State B where the child acquired a new home State would provide the only forum.
This Act bases jurisdiction on the parent and child or person acting as a parent and
child relationship without regard to grandparents or other potential seekers of
custody or visitation. There is no conflict with the broader provision of the PKPA.
The PKPA in  (c)(1) authorizes States to narrow the scope of their jurisdiction.

2. Significant connection jurisdiction. This jurisdictional basis has been
amended in four particulars from the UCCJA. First, the "best interest" language of
the UCCJA has been eliminated. This phrase tended to create confusion between
the jurisdictional issue and the substantive custody determination. Since the
language was not necessary for the jurisdictional issue, it has been removed.

Second, the UCCJA based jurisdiction on the presence of a significant
connection between the child and the child's parents or the child and at least one
contestant. This Act requires that the significant connections be between the child,
the child's parents or the

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