Child Custody and Jurisdiction

“It is procedure that marks much of the difference between rule by law and rule by fiat.”

Wisconsin v. Constantineau, 400 U.S. 433, 436 (1971)

“The history of procedure is a series of attempts to solve the problems created by the..preceding generation’s procedural reforms.”  

Judith Resnick, Precluding Appeals, 70 Cornell L.R. 603, 624 (1985)

“Procedure” – the ever-lurking maze of rules and requirements that serve as the backdrop for most all litigation can be a most unforgiving proposition.  This is because Procedure dictates and determines so many things – from where to file, when to file, who may file, etc.  Procedure, more than any other component of Law can make a would-be winning argument a losing cause, and vice versa, all without a shot being fired in anger.  Litigants frequently prevail or perish in litigation, not on the merits of their respective arguments but on the basis of their formal compliance with the “rules of engagement”.  Civil Procedure, effectively, are those “rules of engagement”, and the attorney ignores them or is ignorant of them at his own peril.

Jurisdiction is a specific aspect of Civil Procedure.  In a nutshell, Jurisdiction describes the power or authority of given court to entertain a particular dispute.  For the sake of simplicity, suffice it to say that Jurisdiction may turn on (among numerous factors) limited functions of the court in question, location of the court relative location/residence of the parties, and whether a party to litigation received adequate notice so as to justify his or her being hauled into court.  Jurisdiction is perhaps the bedrock principle in American Civil Procedure, as some of the most vintage of cases have ensconced the principle: No Jurisdiction = No Power of Judgment.  See e.g. International Shoe Co. v. Washington326 U.S. 310 (1945)(personal jurisdiction requires, at least, minimal contacts, with forum state).

In the context of Child Custody disputes, traditional rules of Jurisdiction have been enhanced and universally codified by the Uniform Child Custody Jurisdiction and Enforcement Act.  Currently, the Act has been adopted in its entirety by all states except Massachusetts.  Pennsylvania’s adoption of the UCCJEA is reflected by Commonwealth statutes.  See 23 Pa.C.S. §§ 5401-5482.  The Act was promulgated for several reasons, not least of all to redress the practice of disputant parents leaving one state and moving to another, without knowledge or consent of the other parent to evade the force of the prior state’s duly entered Orders regarding custody. Of equal importance, the UCCJEA was set forth to resolve “full faith and comity” issues where sister-courts in different jurisdictions would purport to exercise jurisdiction over a single child custody dispute, the UCCJEA was constructed to stipulate default preference in the event of such jurisdictional overlap.

Among the UCCJEA’s most important resolutions to jurisdictional chaos heretofore caused by parents behaving badly, is definition of the “home state”.  Essentially, the “home state” in custody is the state where the custody action originates (i.e. where custody was first filed and litigated.  Additionally, the UCCJEA provides that “home state” Jurisdiction automatically continues despite the relocation of the child/children in question for at least 6 months after relocation.  Conversely, the UCCJEA provides that after 6 months unbroken residency in a new state (other than the state in which the custody action originated) the new state is presumed to become the home state.  Interestingly also, the UCCJEA provides that any competent court (i.e. such court which has subject matter jurisdiction) may take jurisdiction.

Through the UCCJEA, appropriate Jurisdiction is met only through application of Procedural Law – under the UCCJEA there is little to no room for approximation or conjecture about Jurisdiction. To illustrate this point – Explanatory Comments to the UCCJEA state that parties may not informally “agree” to Jurisdiction where the Law does not formally create it.  Relatedly, even where a court would, arguably, have jurisdiction it may nevertheless decline jurisdiction where it determines that a more appropriate forum exists elsewhere.  See UCCJEA Sec. 207 (Inconvenient Forum).  The UCCJEA is also calibrated to enable courts to punish bad-faith conduct of disputants in a custody action who would seek to relocate to forum-shop or to otherwise avoid the force of a prior Order.  See UCCJEA Sec. 208 (Jurisdiction Declined by Reason of Conduct).

I don’t presume to be able to competently summarize all (or even most) of the aspects of the UCCJEA here – its provisions are many, its history fairly complex, and the sheer number of scenarios concerning jurisdictional-dispute which it contemplates, are dizzying.  I hope though that the foregoing enables at least a basic appreciation for the significance of the UCCJEA and for “Procedure” in Child Custody, in general.  To supplement this entry, consider viewing some other online resources regarding the Act: https://www.ncjrs.gov/pdffiles1/ojjdp/189181.pdf ; http://www.uniformlaws.org/shared/docs/child_custody_jurisdiction/uccjea_final_97.pdf

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