Interstate Custody: Understanding the UCCJA, the UCCJEA, and the PKPA

[Editor’s note: The following is reprinted with permission from a legal resource kit, NOW Legal Defense and Education Fund, Interstate Custody: Understanding the UCCJA, the UCCJEA, and the PKPA (July 1999). Copyright © 1999 by NOW Legal Defense and Education Fund Inc.]

Battered women and their advocates often find themselves involved in a custody dis­pute that involves more than one state. These disputes may arise after a woman crosses state lines with her children to flee an abusive situation. They may also be the result of an abusive parent kidnap­ping the couple’s children or filing a law­suit for custody in one state while the woman and children are temporarily vis­iting a second state. In these and other situations, understanding the laws that govern interstate custody is important.

What Are the UCCJA, the UCCJEA, and the PKPA?

UCCJA stands for the Uniform Child Custody Jurisdiction Act./1/ It is a set of guidelines created in 1968 to help foster uniformity among the states with respect to child custody and enforcement laws. These guidelines have been adopted in some form by all fifty states. The UCCJEA stands for the Uniform Child Custody Jurisdiction and Enforcement Act./2/ The UCCJEA, issued in 1998, is a new model of the UCCJA. As of July 1999, thirteen states have adopted it, and many other states are expected to adopt it over the next few years./3/ The UCCJA and UCCJEA are useful only if your state has adopted them. The PKPA stands for the Parental Kidnapping Prevention Act./4/ It is a fed­eral law that allows one state to honor and enforce the custody determination of another state as long as the Act’s require­ments are satisfied.

What Are the Differences Among the UCCJA, UCCJEA, and the PKPA?

There are some important differences among the UCCJA, the UCCJEA, and the PKPA. The UCCJA does not give prefer­ence to the child’s home state (the state where the child has lived for six months before the custody case) in determining which state has the power to make deci­sions in a child custody dispute./5/ The PKPA does./6/ Also, the PKPA provides that, once a state has made a custody deter­mination, it has the exclusive power to continue to make all custody determina­tions as long as one party in the dispute remains in the state. The UCCJA is less clear about whether more than one state may have the power to make custody decisions at a given time./7/ For those states that have adopted the UCCJEA, these dif­ferences are reconciled. The UCCJEA adopts the PKPA provisions that clarify which state may make custody decisions when more than one state is involved./8/ It also creates new provisions requiring states to enforce the custody and visitation determinations of other states./9/

When May the UCCJA, UCCJEA, or the PKPA Become a Factor in a Custody or Visitation Case Where Domestic Violence Is an Issue?

The UCCJA, UCCJEA, and PKPA help courts determine which state has the authority to make a custody decision when the children and their parents do not all live in the same state. They do not provide guidelines to help courts deter­mine who gets custody or what kind of visitation arrangements should be made. The most common circumstances in which the UCCJA, the UCCJEA. or the PKPA or all three apply are

• where a battered woman and her child flee to another state without a cus­tody or visitation order or in violation of a custody or visitation order or

• where a batterer abducts the child in violation of a custody or visitation order

Why Is an Understanding of the UCCJA, UCCJEA, and the PKPA Important in Child Custody and Visitation Cases Where Domestic Violence Is an Issue?

An understanding of the UCCJA, UCCJEA, and the PKPA is important because these are the provisions that a court looks to in determining whether it has the power to hear an interstate custody case. Battered women must be aware that fleeing with a child for safety reasons does not auto­matically justify removal of the child in the eyes of the court. Similarly a battered woman whose child is abducted by the batterer must be armed with the legal basis for securing the return of the child because the longer the child is in a dif­ferent state, the harder may be to secure the child’s return.

How Does a Court Decide Whether It May Hear a Case Under the UCCJA, UCCJEA, or the PKPA? 

A court must first decide whether it has jurisdiction in the case. The first question is whether any other state has grounds to hear a case. If so, the court may not make a custody decision. This is because of the provisions that grant jurisdiction to only one state. Two states may not both rule in the same custody case.

If no other state has jurisdiction, then a court must determine if it has the power to make the custody decision. In child custody matters where domestic violence is an issue, there are two “types “ of juris­diction most likely to serve as the basis for a court hearing a case under the UCCJA, UCCJEA, or the PKPA. They are “home state” jurisdiction and “emergency jurisdiction.”/10/

A “home state” is the state where the child has lived with a parent or an acting parent for at least six consecutive months immediately before the commencement of a child custody proceeding, or from the child’s birth until the commencement of the proceeding, if the child is less than 6 months old./11/ Under the UCCJEA and the PKPA, jurisdiction based on the “home state” of the child has priority over all other bases for jurisdiction./12/

“Emergency jurisdiction” is the tem­porary power of a court to make decisions in a case to protect a child from harm.13 In custody or visitation matters where domestic violence is an issue, a court may decide to exercise “emergency” jurisdic­tion to protect a battered woman and her child. This type of jurisdiction is temporary and is invoked solely for the purpose of protecting the child until the state that has jurisdiction enters an order. Therefore an order issued by a court exercising “emer­gency jurisdiction” is not a permanent order regarding custody or visitation.

What if I Am Only Asking the Court to Modify an Existing Custody Order?

The UCCJA, UCCJEA, and the PKPA apply in cases where a person is seeking a mod­ification of a custody or visitation order. A court must meet the standards required for exercising either home state or emergency jurisdiction before it may modify the order.

May a Court Reject My Request to Exercise Jurisdiction in My Case?

Yes. Under the UCCJA, UCCJEA, and the PKPA a court may decline to hear a case if it appears that the requesting party has “unclean hands”—for example, if a person who alleges safety concerns merely as a pretext for bringing a custody matter in another state. Being prepared to present testimony and other evidence helps you state your case and avoid a denial of juris­diction on this basis.

1 See Uniform Child Custody Jurisdiction Act, www.law.upenn.edu/bll/ulc/fnact99/1920-69/uccja68.htm [hereinafter UCCJA].

2 See Uniform Child-Custody Jurisdiction and Enforcement Act, www.law.upenn.edu/bll/ ulc/uccjea/chldcus2.htm [hereinafter UCCJEA].

3 The states are Alabama, 1999 Ala. Acts 438; Alaska, ALASKA STAT. §§ 25.30.3000 to 25.30.910; Arkansas, 1999 Ark. Acts 668; Connecticut, 1999

Conn. Pub. Acts 185; Iowa, 1999 Iowa Legis. Serv. S.F. 367 (West); Maine, 1999 Me. Laws 486; Minnesota, 1999 Minn. Sess. Law Serv. 74 (S.F. 129)(West); Montana, 1999 Mont. Laws 91 (H.B.24); North Carolina, 1999 N.C. Sess. Laws 223; North Dakota, 1999 N.D. Laws 147 (S.B. 2152); Oklahoma, OKLA. STAT. tit. 43, §§ 551-101 to 551-402; Oregon, S.B. 789, 70th Leg. (Ore. 1999) (enacted); and Texas, 1999 Texas Sess. Law Serv. 34 (H.B. 797) (Vernon’s).

4 See 28 U.S.C. § 1738A (1999).

5 See UCCJA.

6 See Uniform Child Custody Jurisdiction and Enforcement Act—A Summary,

www.nccusl.org/summary/uccjea.html [hereinafter UCCJEA Summary]; see also 28 U.S.C. § 1738A(c)(2)(A)(I).

7 See UCCJEA Summary; see also 28 U.S.C. § 1738A(d), (f)–(g).

8 See UCCJEA Summary; see also UCCJEA art. 2, §§ 201(a)(1), (202)–(203).

9 See UCCJEA Summary; see also UCCJEA art. 3, §§ 301–316.

10 Two additional jurisdictional bases for a state to hear a custody or visitation matter are “significant connection jurisdiction” and “default jurisdiction,” which apply only if no other state would have jurisdiction. See UCCJA § 3(a)(2), 3(a)4; UCCJEA art. 2,

§ 201(2)(A), 201(2)(B)(4); 28 U.S.C. § 1738A(c)(2)(B), 1738A(c)(2)(D).

11 See UCCJA § 2(5); UCCJEA art. 1, § 102(7); 28 U.S.C. § 1738A(b)(4).

12 See UCCJEA art. 2, § 201(a)(1); 28 U.S.C. § 1738A(c)(2)(A).

13 See UCCJA § 3(3)(ii); UCCJEA art. 2, § 204; 28 U.S.C. § 1738A(c)(2)(C)(ii). Under the UCCJEA the court also may act to protect a parent or sibling of the child. See UCCJEA art. 2, § 204(a).