UNIFORM CHILD CUSTODY AND JURISDICTION ACT (U.C.C.J.E.A.) Rules of Engagement for Interstate Custody

UCCJEA Prepared by National Conference of Commissioners on Uniform State Laws in 1997 to supersede U.C.C.J.A. (1968)

Rule No. 1 Subject matter jurisdiction for an initial child custody determination can NEVER be conferred by agreement where it does not exist. See Medill v. Medill 179 Ore. App. 630, 40 P.3d 1087 (Ore.App.2002)

Rule No 2 Do not confuse personal jurisdiction and subject matter jurisdiction . Unlike UIFSA this is not about service of process, personal jurisdiction is conferred because of either the current or immediate past presence of the children in the jurisdiction. Notice in a method “reasonably calculated” to provide actual notice.

Changes to the UCCJA Home State is given a priority. Establishes concept of Exclusive Continuing Jurisdiction Simultaneous proceedings International Application Removes “Temporary Emergency” and “Best Interest” from consideration in Initial determination jurisdiction. Process for Registration.

Applying the Act Home state Step 3 6 months prior to filing Step 2 How long has the child been in NJ? Step 1 Is this the first custody order? A note here on “step 2” the Act requires that initial pleadings provide under oath representation of the where the child has lived for the last five years, or since birth, if younger than 5. Whether there are any other proceedings in any court related to this child. Whether there are any proceedings that could “impact” on this one, enforcement, dv, protective orders, tpr, adoptions, and provide the case numbers. Who should be involved in the proceeding . IF not voluntarily provided the court should sua sponte, stay the proceedings .

Initial Determination (1) Except in the case of a Temporary emergency , a Court has jurisdiction to make an initial child custody determition ONLY if: The date the proceeding was commenced Rhode Island was the “home state” OR Rhode Island served as the home state of the child within 6 months before the commencement of the proceeding and the child is absent from Rhode Island but a parent, or person acting like a parent continues to live here.

2A:34-65 Initial determination (2) There is no state serving as the “home state” The previous “home state” of the child has declined ( after an application has been made there ) to exercise jurisdiction because RI is the more appropriate forum : either Because one of the 8 or so enumerated statutory factors is present in RI OR,

Initial Determination Because a party has engaged in improper conduct. AND The child and at least one parent have a significant connection with RI other than simply physical presence, AND There is substantial evidence in RI concerning the child’s care, protection, training and personal relationships.

Initial determination (4) No State would have “home state” jurisdiction or have significant , evidence based connection , or otherwise have jurisdiction based upon another state’s determination of forum non conveniens . Note: Physical presence , and personal jurisdiction over a party neither necessary nor sufficient …. ( cannot voluntarily confer jurisdiction )

Applying the Act: Are there other proceedings filed? Is there an existing home state? Is the parent a military member? In RI less than 6 months If the child has been in New Jersey, on the face of the Petition less than 6 months, and this is an initial child custody determination you have to look at a number of issues simultaneously 1. Were there “temporary” absences 65: (1) 2. NJSA 9:2-12.1 Military Custody Statute 3. 2A:34-67 , Temporary Emergency Jurisdiction NJSA 2A:34-69.

Applying the Act : Is there another case going on? Judicial communication Is the other state exercising jurisdiction in keeping with the act? Is it an international proceeding? Is RI the home state ?

Simultaneous Proceedings (A) Except in the case of a Temporary Emergency, a RI may not exercise its jurisdiction if ,( at the time a proceeding is commenced in RI) , a custody proceeding has already been commenced in a court of another state ( which is exercising jurisdiction substantially in conformity with this act.) If terminated or stayed RI proceeds

Simultaneous Proceedings (B) Once a RI court determines that there is a child custody proceeding first commenced in another state proceeding in substantial conformance with the Act, the RI Court must STAY its proceeding. Then the RI Judge has the affirmative obligation to initiate communication with the Judge conducting the first filed and conforming proceeding . The Judge in the original proceeding then gets to decide whether to defer. Unless she defers to RI, RI must dismiss their proceedings.

International Application (A) A RI Court shall treat a foreign country as if it were a State of the United States for the purposes of applying the jurisdictional analysis of this Act IF, The foreign court gives notice and opportunity to be heard to all parties before making child custody determinations.

International Application (B) A child custody determination made in a foreign country under factual circumstances ( ie. Not how it should work, in theory or based upon the statute, but how did it actually work in THIS case) in substantial conformity with the jurisdictional standards of this Act, shall be recognized and enforced under the Enforcement Process of this Act.

International Application (c) Even so, a RI need not apply this act any time it finds: That the child custody law of a foreign country violates fundamental principles of human rights OR, The foreign process does not base custody decisions on an evaluation of the “best interests” of the child.

Applying the Act : Is there already a child custody determination Was the order entered by an International court? Does anyone live in the original state? Is this a modification application?

IS this an application to Modify? Absent a temporary emergency… A RI Court cannot modify another court’s order. UNLESS RI has become the “home state”, or the significant contact state…AND The ORIGINAL STATE makes the determination that it no longer exercises Exclusive continuing jurisdiction, OR That RI is the more convenient forum. BUT Has Elvis left the building?

Exclusive Continuing Jurisdiction Except in the Case of a Temporary emergency… Once RI renders a child custody determination consistent with this Act, RI continues to exercise exclusive and continuing jurisdiction UNTIL RI decides that neither the child, nor either of the parents have a significant connection with RI and the necessary evidence (For the application ) is no longer available. If both parties and the child leave the State, than either RI or another state may make a determination “Elvis has left the building” and exercise jurisdiction , provided they have become the “home” or significant connection state.

Is this an enforcement application? Is there another proceeding commenced? Was there jurisdiction when entered? Has this order been modified? Has this order been registered?

Is this an emergency? Is there a prior order or a pending proceeding? Is the child, a sibling or parent in danger of abuse? Has the child been abandoned ? Is this child here?

Temporary Emergency Jurisdiction A RI court has temporary emergency jurisdiction when: The child is present in RI AND Has been abandoned , or: The child, a sibling or parent of the child is subjected to or threatened with mistreatment or abuse .

What if there is no other proceeding or previous determination? The RI order remains in effect until a proceeding is commenced in the “ home state” jurisdiction. In the event that no such proceeding is commenced, the emergency order becomes final when: 1) It provides that it will become a final order AND 2) RI becomes the home state.

Has there been a previous determination? If so, A RI court must immediately communicate with the court of the ECL to resolve the emergency, protect the safety of parties or child and determine the duration of the RI order ( based upon when the ECL court can address the issue) Any order the court enters MUST specify in the order an expiration date adequate to allow the person who has sought the order to obtain one in the ECJ state. The RI order is only good until the new order is entered , OR the time lapses.

Inconvenient Forum (1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child; (2) the length of time the child has resided outside of the state; (3) the distance between the court in this state and the court in the state that would assume jurisdiction; (4) the relevant financial circumstances of the parties; (5) any agreement of the parties as to which state should assume jurisdiction; (6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child; (7) ability of each state to decide case expeditiously and evidence procedures (8) familiarity of court of each state with facts and issues of pending litigation

UCCJEA Jurisdiction Declined By Reason of Conduct If this state has UCCJEA jurisdiction because a person invoking the jurisdiction has engaged in unjustifiable conduct, this court shall decline to exercise jurisdiction unless: (1) the parents and all persons acting as parents have acquiesced in the exercise of jurisdiction; (2) a court of the state otherwise having UCCJEA jurisdiction determines that this state is a more appropriate forum under the Act; or (3) no other state would have UCCJEA jurisdiction

UCCJEA Jurisdiction Declined By Reason of Conduct (cont’d) b. If this court declines jurisdiction, it may fashion an appropriate remedy to ensure safety of child and prevent repetition of the wrongful conduct, including staying the proceeding until an action is initiated in the UCCJEA state. c. If this court dismisses a petition or stays a proceeding because it declines to exercise jurisdiction, court may assess fees and costs against petitioner. (No fees assessed against a party who is fleeing as a result of an incident of domestic violence).