Presentation on theme: "The Family Law Section of the State Bar of Michigan MID-SUMMER SEMINAR."— Presentation transcript:
The Family Law Section of the State Bar of Michigan MID-SUMMER SEMINAR
The Uniform Child Custody Jurisdiction & Enforcement Act The “UCCJEA” Jeanne M. Hannah
UCCJEA and Parental Kidnapping According to the United States Department of Justice, Office of Juvenile Justice and Delinquency Prevention, there are between 200,000 and 300,000 reported cases of parental abduction every year in the United States In nearly half of these cases, children are taken across state lines and concealed, or the abductors have prevented contact with the “left-behind” parent, and/or have intended to keep the children indefinitely or until custody was changed.
UCCJEA and Parental Kidnapping All 50 states have enacted the Parental Kidnapping Prevention Act of 1980. The Uniform Child Custody Jurisdiction Act was promulgated as a Uniform Law in 1968, and was eventually enacted by all 50 states. The UCCJA governed jurisdiction to make and modify child custody determinations and required recognition and enforcement of custody orders issued by sister states.
UCCJEA and PKPA Because the UCCJEA gave equal weight to each of the four bases for taking jurisdiction, there continued to be controversies between state courts as to which court had exclusive or continuing jurisdiction, causing an inherent conflict between the UCCJA and the PKPA. As a result, the Uniform Laws Commission promulgated the Uniform Child Custody Jurisdiction and Enforcement Act in 1997. The UCCJEA to date has been adopted by 45 states. The UCCJA remains the law in those states not adopting the UCCJEA.
Basic Facts UCCJEA in Michigan Act 195 of 2001, effective on April 2, 2002 Codified at MCL 722.1101 et seq. Replaced the UCCJA, which was repealed Achieved consistency with the PKPA Established a new priority system regarding exercise of original jurisdiction to determine custody
Basic Facts UCCJEA in Michigan Clear standards: When does a State have jurisdiction to make initial custody determination? Clear standards: When should a State continue jurisdiction? Clear standards: When may a State accept jurisdiction to modify orders of another State? Establishes uniform mechanism for interstate enforcement of custody orders.
Four Articles UCCJEA in Michigan Article 1—”General Provisions” (including definitions) MCL 722.1101 through 722.1109 Article 2—”Jurisdiction” (substantive provision, except enforcement) Article 3—”Enforcement” Article 4—”Miscellaneous”
Original Jurisdiction under the UCCJA Four Bases: – Home state – Best interest of the child –Abandonment or emergency –No other State with jurisdiction Each basis had equal priority
Original Jurisdiction under the UCCJEA MCL 722.1201(1)(a) Original Jurisdiction—Priority to make initial child custody order –If child has a Home State, that is the only State where jurisdiction is proper unless the Home State declines to exercise jurisdiction –“Home State” = State in which child lived with a parent or person acting as a parent on the date of commencement of child custody proceeding or State that was the home state of the child within the 6 months immediately preceding filing of the action.
Home State Jurisdiction Home State = priority basis for jurisdiction The definition of “Home State” is the same as under the UCCJA, but, importantly, the UCCJEA removes the burden from the petitioner to show why the child is not in the state. Physical presence of, or personal jurisdiction over, a party or a child is neither necessary nor sufficient to make a child-custody determination. MCL 722.1201(3).
“Significant Connection” Jurisdiction under MCL 722.1201(1)(b) A court of another state does not have jurisdiction or declines to exercise jurisdiction AND the court finds both: — Child and child’s parents or child and 1 parent have a significant connection with Michigan other than mere presence — Substantial evidence is in Michigan re: child’s care, training, protection, & personal relationships
Significant Connection Jurisdiction (cont.) UCCJEA removes a “best interest” basis for jurisdiction (contrary to the UCCJA) Remember: Significant connection jurisdiction is subordinate to “home state” jurisdiction “Significant connection” jurisdiction will not work if — Another state has “home state” jurisdiction, and — The state with Home State jurisdiction refuses to decline jurisdiction because of inconvenient forum or conduct of a party
Significant Connection Jurisdiction (cont.) The crux of the issue: Is there sufficient evidence in the state to make an informed custody determination? Narrower definition of who has the connection: (a) The child and the child's parents, or (b) the child and at least 1 parent or a person acting as a parent The connection must be significant — more than mere physical presence.”
“More Appropriate Forum” Jurisdiction under MCL 722.1201(1)(c) Michigan has jurisdiction if state having Home State jurisdiction under subdivision (a) and state having Significant Connection jurisdiction under subdivision (b) decline to exercise jurisdiction on grounds that Michigan is more appropriate forum to make decision under sections 207 or 208
“No other state” Jurisdiction under MCL 722.1201(1)(d) Michigan can exercise jurisdiction to make an initial child custody determination if no other state has or retains jurisdiction under subsections (a), (b), or (c). Remember: There is no best interest of the child standard as in the UCCJA.
Emergency Jurisdiction MCL 722.1204 Unlike the UCCJA, Emergency Jurisdiction now has its own section, MCL 722.1204. Michigan has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse. MCL 722.1204(1)
Declining Jurisdiction A court that has jurisdiction may decline to exercise it on the grounds that another state is a more convenient forum, or because of conduct of one of the parties. No best interest of the child analysis required.
No Personal Jurisdiction Requirement MCL 722.1201(2): Subsection (1) is the exclusive jurisdictional basis for making a child-custody determination by a court of this state. MCL 722.1201(3): Physical presence of, or personal jurisdiction over, a party or a child is neither necessary nor sufficient to make a child-custody determination.
Exclusive, Continuing Jurisdiction MCL 722.1202 Major change from the UCCJA. Once a court that has jurisdiction under the UCCJEA makes a custody determination, that court keeps exclusive and continuing jurisdiction over that determination until: That same court determines that neither the child, the parents, and any person acting as parent has a substantial connection with the state and that substantial evidence is no longer available in this state regarding the child’s care, protection, training, and personal relationships or That same court or another court determines that none of the above parties resides in the issuing state.
Jurisdiction to Modify MCL 722.1203 Issuing state maintains control. Another state can modify only : No substantial connection with the issuing state. Nobody residing in the issuing state. Either the issuing court or another court can determine the second bases, i.e., that nobody is residing in the issuing state.
Emergency Jurisdiction MCL 722.1204 Now called “temporary” emergency jurisdiction. A Michigan court has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
Emergency Jurisdiction (cont.) Issuing court (the court with exclusive, continuing jurisdiction) retains control. Emergency court must communicate with issuing court and emergency court must specify in any order the time period that the court deems adequate for the person seeking the custody order to go to obtain the order from the issuing state. If there is no issuing state, any determination remains in effect until some state obtains jurisdiction under one of the four bases set forth in the UCCJEA.
Simultaneous Proceedings MCL 722.1206 UCCJEA intention is that there are none. Issuing state has control if it had jurisdiction in conformity with the UCCJEA. Issuing Court can do the following: –Maintain jurisdiction. If this occurs, the other court must dismiss the proceeding that is before it. –Determine that the other state is the more convenient forum and defer to it under the standard for inconvenient forum. MCL 722.1207
Inconvenient Forum MCL 722.1207 The procedure is the same as under the UCCJA. The factors regarding inconvenience are different.. Domestic violence is now a factor.
Inconvenient Forum (cont.) A Michigan Court, in determining if another state is a more convenient forum must consider all relevant factors and all of the following: (a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child. (b) The length of time the child has resided outside this state. (c) The distance between the court in this state and the court in the state that would assume jurisdiction. AND
Inconvenient Forum (cont) (d) The parties' relative financial circumstances. (e) An agreement by the parties as to which state should assume jurisdiction. (e) The distance between the court in this state and the court in the state that would assume jurisdiction. (f) The nature and location of the evidence required to resolve the pending litigation, including the child's testimony. (g)The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence. (h) The familiarity of the court of each state with the facts and issues of the pending litigation.
Enforcement—An Overview Article 3 of the UCCJEA Establishes a uniform procedure for enforcement. Basic remedy resembles habeas corpus. If there are two states involved, the issuing state remains in control. Communication between courts is required.
Enforcement MCL 722.1303 A Michigan court shall recognize and enforce a child-custody determination of a court of another state if the latter court exercised jurisdiction that was in substantial conformity with this act or the child-custody determination was made under factual circumstances meeting the jurisdictional standards of this act and the child-custody determination has not been modified in accordance with this act. (2) A court of this state may utilize a remedy available under another law of this state to enforce a child-custody determination made by a court of another state. The procedure provided by this article does not affect the availability of other remedies to enforce a child- custody determination.
Full Faith and Credit MCL 722.1312 Courts in states that have enacted the UCCJEA are required to give full faith and credit to an order issued by another state that is consistent with this act and to enforces a child-custody determination by a court of another state unless the order has been vacated, stayed, or modified by a court having jurisdiction to do so under article 2.
Securing the Return of Kidnapped Child Not all states and not all Courts in states that have enacted the UCCJEA have had sufficient experience with the UCCJEA to acquaint them with the procedures. A party is not required to register a custody order in order to get enforcement. A Writ of Habeas Corpus, a UCCJEA Warrant for Return of Child, or a UCCJEA Child Pick-up Order should be enforced without registration.
Securing the Return of Kidnapped Child (cont.) Practice Pointers –Send person picking up child to state where child is located fully armed with a certified copy of court documents (Motion for Custody, Child Custody Order, UCCJEA Warrant – Prepare law enforcement and the court in other state for arrival of documents –Request Full Faith & Credit – cite to that state’s UCCJEA (or UCCJA) statute –Communicate with Prosecuting Attorney and law enforcement, sending copies of all documents and also sending along the UCCJEA Bulletin provided by The Office of Juvenile Justice and Delinquency Prevention (OJJDP)
Registration of Custody Orders MCL 722.1305, 722.1306 Uniform procedures are established. –Specific documents must be submitted. –Specific notice must be given. –Other party must meet deadline to request a hearing. –Consequences of missing the deadline Court in enforcement state can grant any relief that is authorized under the law of the enforcement state, but may not modify the custody determination.
Simultaneous Proceedings MCL 722.1307 During enforcement, it is appropriate to have simultaneous proceedings under the UCCJEA. Enforcing court is required to communicate with the issuing court. After communication, the enforcing court, presumably at the direction of or with the agreement of the issuing court can: –Continue the enforcement action. –Stay the enforcement proceeding.. –Dismiss the enforcement proceeding.
Expedited Enforcement MCL 722.1308 through 722.1311 Standardized requirements for a petition to enforce. Establishes a habeas corpus type of remedy: –Upon filing petition, court issues order directing respondent to appear with or without the child. –Hearing is to be held on the next judicial day after service of the order. –Inquiry at hearing is limited to whether the issuing court had jurisdiction under the UCCJEA or whether there is some defect in procedure. –Court authorized in an emergency (threat of physical harm or removal of child) to issue a warrant to law enforcement officers to take immediate physical custody of child.
Important Resources 2001 Bulletin: The Uniform Child Custody Jurisdiction and Enforcement Act – Bulletin from OJJDP (Office of Juvenile Justice & Delinquency Prevent) www.ncjrs.gov/pdffiles1/ojjdp/189181.pdf 2001 Study: The Criminal Justice System’s Response to Parental Kidnapping www.ncjrs.gov/pdffiles1/ojjdp/186160.pdf Parental Kidnapping: Prevention and Remedies. ABA. Patricia Hoff www.abanet.org/child/pkprevrem.pdf A Family Resource Guide on International Parental Kidnapping http://www.ncjrs.org/pdffiles1/ojjdp/190448.pdf
More Important Resources The Committee for Missing Children, Inc. – Custody and Parental Abduction by State. Resources for lawyers and parents -- links to the substantive law available in each State for use in recovering children who have been abducted. http://www.findthekids.org/abdbystate.html http://www.findthekids.org/abdbystate.html List of 44 states having adopted UCCJEA and other summary of UCCJEA from ABA: www.abanet.org/family/newsletters/2005/UCCJEA.pdf
More Important Resources Early Identification of Risk Factors for Parental Abduction. www.ncjrs.gov/html/ojjdp/2001_3_1/contents.html www.ncjrs.gov/html/ojjdp/2001_3_1/contents.html Or in PDF format: www.ncjrs.gov/pdffiles1/ojjdp/185026.pdf Missingkids.com – Then go to Resources for Parents
More Important Resources From the Polly Klaas Foundation, many resources http://www.stopfamilyabductionsnow.org/family_court.html http://www.stopfamilyabductionsnow.org/family_court.html "The Impact of Parental Kidnapping Laws and Practice on Domestic Violence Survivors http://www.vaw.umn.edu/documents/pkreport/pkreport.html http://www.vaw.umn.edu/documents/pkreport/pkreport.html An Advocate's Guide to Full Faith and Credit for Orders of Protection : Assisting Victims of Domestic Violence http://www.vaw.umn.edu/documents/ffc/pcadv/pcadv.html