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UCCJEA and PKPA An overview by Professor M. R. Franks Copyright © 2009, M. R. Franks.

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Presentation on theme: "UCCJEA and PKPA An overview by Professor M. R. Franks Copyright © 2009, M. R. Franks."— Presentation transcript:

1 UCCJEA and PKPA An overview by Professor M. R. Franks Copyright © 2009, M. R. Franks

2 n UCCJEA stands for Uniform Child Custody Jurisdiction and Enforcement Act –It, or its nearly-identical predecessor, the UCCJA, is law in all 50 states and in the territories –We have UCCJEA in Louisiana n FPKPA, also called PKPA, is the Federal Parental Kidnapping Prevention Act –It is a federal statute –It has nothing to do with kidnapping

3 FIRST, UCCJEA n The purpose of UCCJEA is to resolve and prevent jurisdictional conflicts between states in custody matters –The act does not confer jurisdiction –It does state which state may proceed to exercise its jurisdiction n This is not a reciprocal act –It is not necessary that the other state also have UCCJEA or UCCJA –UCCJEA applies internationally

4 HOME STATE n UCCJA (LRS 13:1802) defines the “Home State” of the child as: –the state in which the child immediately preceding the time involved lived with his parents –Or a parent –Or a person acting as a parent n For at least six consecutive months n In the case of a child less than six months old, from birth n Periods of temporary absence are counted as part of the six-month period

5 LRS 13:1813 provides that a court of this state which is competent to decide child custody matters has jurisdiction by initial or modification decree if 1. This state is the home state of the child (i) On the date of commencement of the proceeding (ii) or was the child’s home state within six months before commencement n and the child is absent, but n a parent or person acting as parent continues to live in this state, or (iii) Or was the child’s home state within twelve months and the child was evacuated in an emergency, or 2.A court of another state does not have jurisdiction, or the home state has declined to exercise jurisdiction, and (i)The child and at least one parent have a significant connection with this state, or (ii)Substantial evidence is available in this state concerning the child’s care, protection, training and personal relationships, or 3.All courts having jurisdiction have declined to exercise jurisdiction, or 4. No court of any other state would have jurisdiction.

6 L.R.S. 13:1817 n Notice and opportunity to be heard must be given to the contestants –The Act therefore applies to both permanent and temporary custody –To both original and modification decrees –But not to ex parte orders

7 L.R.S. 13:1808 n Notice may be given to persons outside this state by –Personal service outside this state, or –By registered or certified mail, or –By service on a court-appointed curator- ad-hoc

8 L.R.S. 13:1818 n Lockout provision –A court of this state may not exercise jurisdiction if a proceeding is pending in the court of another state exercising jurisdiction substantially in conformity with UCCJEA n unless the proceeding is stayed by the court of the other state on grounds that this state is a more appropriate forum

9 L.R.S. 13:1819 n Forum non conveniens: –A court that has jurisdiction may decline to exercise jurisdiction upon finding that a court of another state is a more appropriate forum. n Similar to forum non conveniens under the Code of Civil Procedure

10 L.R.S. 13:1820 n A kidnapper cannot set up a home state –If the petitioner has wrongfully taken the child, the court shall decline to exercise jurisdiction.

11 L.R.S. 13:1821 n In all custody cases, the petitioner shall file a pleading under oath: –Giving each address where the child has lived within the last five years, and –Advising whether he has participated as a party or witness in any other custody proceeding concerning the child, and –Advising of any custody proceedings pending in any other court, and –Identifying any other party who claims rights of custody

12 L.R.S. 13:1825 n Recognition of out-of-state decrees –The courts of this state shall recognize and enforce a custody determination of a court of another state if the latter court acted in conformity with UCCJEA

13 L.R.S. 13:1815 n Modification of decree of another state –A court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination and the court of the other state no longer has jurisdiction or none of the parties now resides in such state

14 L.R.S. 13:1827 n Enforcing decree of another state –A certified copy of a custody decree of another state may be registered –A decree so registered has the same effect and is enforced in like manner as a custody decree rendered by a court of this state

15 L.R.S. 13:1805 n International application –A foreign country is treated as if it were a state –Unless that country violates substantial human rights

16 L.R.S. 13:1816 n Abandoned children and emergencies are now in a separate section. n Emergency jurisdiction has never been favored under the old UCCJA. n In an emergency, a court may grant temporary relief to enable the claimant to seek relief in the proper state.

17 You’ve now learned about UCCJEA Uniform Custody Jurisdiction and Enforcement Act Uniform Custody Jurisdiction Act L.R.S. 13:1801 et seq. Now let’s talk about PKPA Federal Parental Kidnapping Prevention Act 28 U.S. Code § 1738A

18 It has nothing to do with kidnapping

19 FPKPA n The purpose of FPKPA is to determine which custody decrees are entitled to full faith and credit n The act is based on U.S. Const. Art. IV, Section 1: –Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State; And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. n The act does not apply internationally

20 PKPA is like the old UCCJA. n Yet PKPA is a federal law, and under the supremacy clause a federal statute trumps UCCJEA. n See Atkins v. Atkins, 623 So.2d 239 (La. App. 2d Cir. 1993).

21 HOME STATE under FPKPA n 28 U.S.C. § 1738A defines the “Home State” of the child as: –the state in which, immediately preceding the time involved, the child lived with his parents –Or a parent –Or a person acting as a parent n For at least six consecutive months n In the case of a child less than six months old, from birth n Periods of temporary absence are counted as part of the six-month period

22 28 USC § 1738A (c)(1) provides that a child custody determination made by the court of a state is consistent with this section only if 1. Such court has jurisdiction under the law of such state, and 2. One of the following conditions is met: A. Such state is the home state of the child (i) on the date of commencement of the proceeding (ii) or had been the child’s home state within six months before the date of commencement –and the child is absent because of his removal or retention by a contestant, –and a contestant continues to live in such state, or B. (i) It appears that no other state would have jurisdiction under Subparagraph A, and (ii) It is in the best interests of the child that a court of such state assume jurisdiction because (I) the child and at least one contestant have a significant connection with such state (II) and there is available in such state substantial evidence concerning the child’s present or future care, or C. The child is physically present in such state, and (i) the child has been abandoned (ii) or it is necessary in an emergency to protect the child, or D. (i) It appears no other state would have jurisdiction, or another state has declined to exercise jurisdiction on the ground that such state is the more appropriate forum, and jurisdiction on the ground that such state is the more appropriate forum, and (ii) it is in the best interests of the child that such court assume jurisdiction

23 28 U.S. Code § 1738A (d) n The jurisdiction of a court of a state which has made a child custody or visitation determination consistently with this section continues –so long as the requirement of subsection (c)(1) [the four tiers] continues to be met, and –such state remains the residence of the child or of any contestant

24 28 U.S. Code § 1738A (e) n Before a child custody or visitation determination is made, reasonable notice and opportunity to be heard shall be given to –the contestants –any parent whose rights have not previously been terminated, and –any person who has physical custody

25 28 U.S. Code § 1738A (f) n A court may modify a determination of custody of the same child made by a court of another state if –it has jurisdiction to make such a determination, and –the court of the other state no longer has jurisdiction, or has declined to exercise jurisdiction

26 28 U.S. Code § 1738A (g) n A court of a state shall not exercise jurisdiction in any proceeding for custody commenced during the pendency of a proceeding in another state where such court of that other state is exercising jurisdiction consistently with the provisions of this section.

27 28 U.S. Code § 1738A (h) n A court of a state may not modify a visitation determination made by a court of another state unless the court of the other state –no longer has jurisdiction, or –has declined to exercise jurisdiction

28 UCCJEA FPKPA n Primarily determines which state shall proceed and which shall abstain n Treats emergencies separately n Contains provisions on enforcement of out-of- state custody orders n Applies internationally n Primarily determines which custody decrees are entitled to full faith and credit n Treats emergencies as the third tier n Does not apply internationally

29 The Beginning of your successful family law practice and The End of this presentation


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