The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) is a law that has been adopted by 49 of the 50 states.
Essentially, this act standardizes some of the child custody laws in each of the states.
Most importantly, custody orders which are created in one state are honored in any of the other UCCJEA states.
How the Uniform Child Custody Jurisdiction and Enforcement Act Works
The Uniform Child Custody Jurisdiction and Enforcement Act does several things, all of which tie back to the idea of making custody orders valid in as many states as possible.
Determining which state’s courts have jurisdiction over an initial custody determination
Generally, under the Uniform Child Custody Jurisdiction and Enforcement Act, the courts of the state that is considered the child’s “home state” will have jurisdiction.[i]
But, what is a child’s “home state” under the Uniform Child Custody Jurisdiction and Enforcement Act?
It is really quite simple. The child’s home state is the state where the child lived with a parent (or person acting as a parent) for at least six consecutive months immediately before the commencement of the proceeding.[ii]
Easy, right? But wait, what if my child is less than six months old?
Well, in the case of a child younger than six months old, the child’s home state will be the state he or she has lived in since birth.
So under this home state test, when does a Virginia court have jurisdiction to initially enter a child custody order?
A Virginia court will have jurisdiction to initially enter a child custody order under the Uniform Child Custody Jurisdiction and Enforcement Act when either:
- Virginia is the child’s home state on the date of the commencement of the proceeding; or
- Virginia was the child’s home state for six consecutive months before the commencement of the proceeding and the child is absent from Virginia but a parent continues to live in the Commonwealth.[iii]
What if I allowed my child be taken from Virginia?
It is irrelevant, the child’s absence from Virginia does not need to be the result of a wrongful removal for a Virginia court to have jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act’s home state standard.
What if there is no “home state” under the Uniform Child Custody Jurisdiction and Enforcement Act?
If no state can claim home state jurisdiction over the child, then the court may apply a significant connection test.
That is, if the child and at least one parent have a significant connection with Virginia, and substantial evidence is available in Virginia concerning the child’s care, protection, training, and personal relationships, then a Virginia court may exercise jurisdiction under the Act.[iv]
What if the court with “home state” jurisdiction does not accept its jurisdiction?
If a court has home state jurisdiction over the child but declines to exercise the jurisdiction based on the forum being inconvenient and all other states with home state jurisdiction decline, then a Virginia court may apply the significant connection test as outlined above.[v]
What if there is no home state nor a state with a significant connection?
If no state may exercise jurisdiction under the home state or significant connections tests, then a Court may have default jurisdiction to enter or to modify a child custody or visitation order.
What if a court outside the commonwealth entered an order based on home state jurisdiction, but I have since moved to Virginia? Can I have a determination issued by a Virginia Court?
Not likely. Once, a court exercises initial jurisdiction over a child custody matter, then that court will have exclusive and continuing jurisdiction over the matter until the court determines that neither the child nor the child’s parents (or person acting as parents) continue to reside in that state.[vi]
Consider the following example:
Amanda has two children with her husband James: 4-year-old Beth and 5-month-old Charles. Amanda and James moved to Mississippi when Beth was 2 years old. They left behind their families in Virginia. Homesick and needing help with their newborn, they moved back to Virginia when Charles was 1 month old.
Tension in the relationship ultimately lead to separation. James moves back to Mississippi and wants to begin the divorce process and custody determination process.
Which state has jurisdiction over the child custody determinations: Virginia or Mississippi?
In the case of 4-year-old Beth, Mississippi will have initial jurisdiction over the matter.
Why? Because applying the home state test, Mississippi is the state that she has lived in for at least six consecutive months before the proceeding.
That is she lived in Virginia until she was two years old (so 24 months), but she lived in Mississippi 24 months before moving back to Virginia for only one month.
So Mississippi has home state jurisdiction and its courts may exercise jurisdiction over the matter.
However, they also have to option under the UCCJEA to claim that Virginia is a more appropriate forum and allow Virginia courts to make the custody determination.
What factors will the courts consider when determining a more convenient forum? More on this below. Let’s look at 4 month old Charles first.
In the case of 5 month old Charles, no state has home jurisdiction. He is only 5 months old, so he has lived in no state for six months.
Moreover, he has not lived in the same state since birth.
So, for Charles, the courts will have to apply the significant connections test.
All other things being equal, Virginia will likely win the significant connection test because Virginia is where he has extensive family ties.
For the sake of argument, let’s assume that Virginia had proper authority under the Uniform Child Custody Jurisdiction and Enforcement Act to exercise jurisdiction over both children.
Once a Virginia court exercises its jurisdiction and makes a child custody determination, then it will maintain that jurisdiction and no other court can exercise any jurisdiction over the matter until unless at least one parent and the child in question have left Virginia.
However, there is an exception for emergencies.
What happens if there is an emergency and another state’s court wants to act on the matter?
There is a limited exception to the exclusive and continuing jurisdiction rule.
Temporary jurisdiction can be held if there is an emergency.
If the child is in Virginia and has been abandoned or it is necessary in an emergency to protect the child because the child or her sibling or parent is subjected to or threatened with mistreatment or abuse, then the court may have temporary jurisdiction under the Act.[vii]
Must a state with initial jurisdiction over a child custody matter exercise its jurisdiction?
The short answer is no. Consider a situation where a child is seven-months-old and lived in Virginia for six and a half months of its life.
Now, the mother took the child with her to South Carolina to escape abuse.
Virginia has home state jurisdiction over the child, but the mother wants to open the custody hearing in South Carolina. Can she?
Well, only if Virginia says that is okay.
She will have to ask the Virginia courts to declare Virginia as an inconvenient forum under the circumstances.
What are the circumstances?
Well the court will consider any evidence submitted, but the most relevant factors include:
- Whether domestic violence has occurred;
- Whether domestic violence is likely to continue in the future;
- Which state can best protect the party and/or the child best from domestic violence;
- How long the child has resided outside of Virginia;
- The distance between the Virginia court and the out-of-state court;
- The financial circumstances of the parties;
- Agreement of the parties as to which court should have jurisdiction;
- The location of evidence, including the testimony of the child;
- Which court can best serve the needs of the parties; and
- How familiar each court is with the case.[viii]
If a Virginia Court determines that Virginia is an inconvenient forum under the circumstances and that a court of another state would be more appropriate, then it may stay the proceedings upon the condition that a child custody proceeding be promptly commenced in the other state and may further impose any other condition that the court considers to be just and proper under the circumstances.
What if I also have both a divorce proceeding and a custody proceeding?
Each can be severed from the other.
That is to say, Virginia could decline to exercise its home state jurisdiction and allow the child custody matter to be resolved in a more appropriate forum while still maintaining jurisdiction over your divorce.[ix]
Can a court exercise jurisdiction if the child was taken wrongfully?
Generally, a court cannot claim jurisdiction anytime the party who is seeking jurisdiction has engaged in unjustifiable conduct—for example, wrongfully taking the child from another state.
However, even if there was unjustifiable conduct, the state may exercise jurisdiction when:
- It is a temporary emergency;
- The parents did not object to the exercise of the jurisdiction;
- A court in the appropriate jurisdiction found Virginia to be a more proper forum under the circumstances; or
- No court of any state would have jurisdiction (under the home rule test or the substantial connection test outlined above).
Must Virginia courts honor an order granted by an out of state court?
Yes. A Virginia court must recognize and enforce a child custody determination for a court of another state if that state’s court exercises jurisdiction in substantial conformity with the Uniform Child Custody Jurisdiction and Enforcement Act.
The other state’s order may be registered in Virginia, with or without a simultaneous request for enforcement, by sending the documents to the appropriate juvenile and domestic relations court.[x]
The Virginia court may utilize any remedy available under Virginia law.[xi]
What if I have an order from abroad?
The Uniform Child Custody Jurisdiction and Enforcement Act allows a Virginia court to enforce the order under the Hague Convention on the Civil Aspects of International Child Abduction, but it doesn’t have to under certain circumstances.[xii]
We have been speaking a lot about entering an initial child custody determination, what about simply modifying an already existing order?
Jurisdiction is continuing and exclusive under most circumstances.
The only time a Virginia court may modify an already existing out of state order under the UCCJEA is when:
- it is an emergency;
- the court of another state determines that it no longer has the exclusive, continuing jurisdiction (i.e. neither the child nor the parent live there anymore);
- the court of the other state determined Virginia would be a more convenient forum; or
- the Virginia court or the court of the other state determines that neither the child, the child’s parents, nor any person actin as a parent presently resides in the other state.[xiii]
The Uniform Child Custody Jurisdiction and Enforcement Act is designed to protect children across the nation.
It was born out of the necessity for our legal system to adjust to a more mobile populace and to provide consistently in a complex legal structure.
While it sounds difficult, its provisions are actually fairly straightforward.
If you want to have your out-of-state order enforced or modified here in the Commonwealth, then speak to an experienced Family Law Attorney today.
[i] Va. Code Ann. § 20-146.12.
[vi] Va. Code Ann. § 20-146.13
[vii] Va. Code Ann. § 20-146.15
[viii] Va. Code Ann. § 20-146.18
[x] Va. Code Ann. § 20-146.26
[xi] Va. Code Ann. § 20-146.24
[xii] Va. Code Ann. § 20-146.23
[xiii]Va. Code Ann. § 20-146.14