The Interplay Of Statutes On Parental Rights-3
THE INTERPLAY OF STATUTES ON PARENTAL RIGHTS, RESPONSIBILITIES, AND PARENT/CHILD CONTACT
C. Uniform Child Custody Jurisdiction Act
The purposes of the UCCJA are:
(a) To avoid jurisdiction custody conflicts between states;
(b) To promote cooperation between different states;
(c) To provide for litigation to take place in the state with the “closest connection” to the child;
(d) To discourage continuing controversy by encouraging binding decisions;
(e) To penalize parents for “abductions and other unilateral removals of children.”
The UCCJA applies to custody and visitation and includes juvenile dependency, guardianship, and step-parent adoptions cases. It has been adopted in every state and in the District of Columbia, but not in Puerto Rico and the Virgin Islands. Because it is a uniform act, state court interpretations may be cited as the authority. The provisions of the UCCJA apply in international custody disputes, even though foreign jurisdiction does not follow the UCCJA.
Jurisdiction becomes complex in custody cases involving American Indians. The UCCJA may apply, but you may also need to invoke the Indian Child Welfare Act, the Act of August 15, 1983, 67 Stat. 588, 28 U.S.C. §1360, the appropriate tribal code and the PKPA.
The UCCJA maintains that the child’s home state or “recent home state” (the home state if not for a recent abduction) is the preferred forum to determine custody. Thus, the state can assume jurisdiction if it is now, or if it has been within six months prior to the commencement of proceedings, the child’s home state.
A court may exercise jurisdiction:
• When a child and at least one contestant have a significant connection with the state and there is available in the state substantial evidence concerning the child’s present or future care, protection, training and personal relationships; or
• If it is in the best interest of the child and no other state has jurisdiction, or when another state has declined to exercise jurisdiction on the ground that the first state is a more appropriate forum; or
• The child is physically present in the state and has been abandoned, or the child must be protected because he or she has been subjected to or threatened with mistreatment or abuse, or is otherwise neglected.
The UCCJA also mandates that courts apply the “clean hands” doctrine to discourage parties from unilateral action or from gaining an advantage in the litigation.
Although courts will consider the parties’ agreement that a custody dispute be litigated in a particular forum, they are not bound by it.
The UCCJA has not been entirely successful in preventing custody litigation over the same child in sister states that have modified the uniform act. And, a judge can interpret the statute without regard to decisions in a sister state. Some judges have ignored sister-state interpretations of key sections of the Act to find a basis for exercising jurisdiction when there was no basis for it. (R. E. Crouch, Interstate Custody Litigation, BNA 1981.)
Selected Provisions of the UCCJA
Jurisdiction to Determine Custody by Decree — Family Code §3403
(a) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if the conditions as set forth in any of the following paragraphs are met:
(1) This state (A) is the home state of the child at the time of commencement of the proceeding, or (B) had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state because of removal or retention by a person claiming custody of the child or for other reasons, and a parent or person acting as parent continues to live in this state.
(2) It is in the best interest of the child that a court of this state assume jurisdiction because (A) the child and the child’s parents, or the child and at least one contestant, have a significant connection with this state, and (B) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.
(3) The child is physically present in this state and (A) the child has been abandoned or (B) it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent. For the purposes of this subdivision, “subjected to or threatened with mistreatment or abuse” includes a child who has a parent who is a victim of domestic violence, as defined in Section 6211.
(4) Both of the following conditions are satisfied:
(A) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (1), (2), or (3) or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child.
(B) It is in the best interest of the child that this court assume jurisdiction.
(b) Except under the conditions specified in paragraphs (3) and (4) of subdivision (a), physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
(c) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine the custody of the child. (Am Stats 1993, C 219)
Reasonable Notice and Opportunity to be Heard — Family Code §3404
Before making a decree under this part, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated, and any person who has physical custody of the child. If any of these persons is outside this state, notice and opportunity to be heard shall be given pursuant to Section 3405. (Ad Stats 1992, C 1)
How to Give Notice to Out-of-State Person — Family Code §3405
(a) Notice required for the exercise of jurisdiction over a person outside this state shall be given in a manner reasonably calculated to give actual notice, and may be made in any of the following ways:
(1) By personal delivery outside this state in the manner prescribed for service of process within this state.
(2) In the manner prescribed by the law of the place in which the service is made for service of process in that place in an action in any of its courts of general jurisdiction.
(3) By any form of mail addressed to the person to be served and requesting a receipt.
(4) As directed by the court (including publication, if other means of notification are ineffective).
(b) Notice under this section shall be served, mailed, delivered, or last published at least 10 days before any hearing in this state.
(c) Proof of service outside this state may be made by affidavit of the individual who made the service, or in the manner prescribed by the law of this state, the order pursuant to which the service is made, or the law of the place in which the service is made. If service is made by mail, proof may be a receipt signed by the addressee or other evidence of delivery to the addressee.
(d) Notice is not required if a person submits to the
jurisdiction of the court.
What to Do If There Is a Proceeding Pending in Other State — Family Code §3406
(a) A court of this state shall not exercise its jurisdiction under this part if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this part, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.
(b) Before hearing the petition in a custody proceeding, the court shall examine the pleadings and other information supplied by the parties under Section 3410 and shall consult the child custody registry established under Section 3417 concerning the pendency of proceedings with respect to the child in other states. If the court has reason to believe that proceedings may be pending in another state, it shall direct an inquiry to the state court administrator or other appropriate official of the other state.
(c) If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction, it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with Sections 3420 to 3423, inclusive.
If a court of this state has made a custody decree before being informed of a pending proceeding in a court of another state, it shall immediately inform that court of the fact. If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction, it shall likewise inform the other court to the end that the issues may be litigated in the more appropriate forum.
Forum Non-Conveniens — Family Code §3407
(a) A court which has jurisdiction under this part to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
(b) A finding of inconvenient forum may be made upon the court’s own motion or upon motion of a party or a guardian ad litem or other representative of the child.
(c) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
(1) If another state is or recently was the child’s home state.
(2) If another state has a closer connection with the child and the child’s family or with the child and one or more of the contestants.
(3) If substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state.
(4) If the parties have agreed on another forum which is no less appropriate.
(5) If the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in Section 3401.
(d) Before determining whether to decline or retain jurisdiction, the court may communicate with a court of another state and exchange information pertinent to the assumption of jurisdiction by either court with a view to ensuring that jurisdiction will be exercised by the more appropriate court and that a forum will be available to the parties.
(e) If the court finds that it is an inconvenient forum and that a court of another state is a more appropriate forum, it may dismiss the proceedings, or it may stay the proceedings upon condition that a custody proceeding be promptly commenced in another named state or upon any other conditions which may be just and proper, including the condition that a moving party stipulate consent and submission to the jurisdiction of the other forum.
(f) The court may decline to exercise its jurisdiction under this part if a custody determination is incidental to an action for divorce or another proceeding while retaining jurisdiction over the divorce or other proceeding.
(g) If it appears to the court that it is clearly an inappropriate forum, the court may require the party who commenced the proceedings to pay, in addition to the costs of the proceedings in this state, necessary travel and other expenses, including attorney’s fees, incurred by other parties or their witnesses. Payment is to be made to the clerk of the court for remittance to the proper party.
(h) Upon dismissal or stay of proceedings under this section, the court shall inform the court found to be the more appropriate forum of this fact, or if the court which would have jurisdiction in the other state is not certainly known, shall transmit the information to the court administrator or other appropriate official for forwarding to the appropriate court.
(i) Any communication received from another state informing this state of a finding of inconvenient forum because a court of this state is the more appropriate forum shall be filed in the custody registry of the appropriate court. Upon assuming jurisdiction, the court of this state shall inform the original court of this fact.
If the Child Wrongfully Is Removed from Other State the Court May Decline Exercise of Jurisdiction — Family Code §3408
(a) If the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in similar reprehensible conduct, the court may decline to exercise jurisdiction for purposes of adjudication of custody if this is just and proper under the circumstances.
(b) Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody. If the petitioner has violated any other provision of a custody decree of another state, the court may decline to exercise its jurisdiction if this is just and proper under the circumstances.
(c) Where the court declines to exercise jurisdiction upon petition for an initial custody decree pursuant to subdivision (a), the court shall notify the parent or other appropriate person and the prosecuting attorney of the appropriate jurisdiction in the other state. If a request to that effect is received from the other state, the court shall order the petitioner to appear with the child in a custody proceeding instituted in the other state in accordance with Section 3421. If no request is made within a reasonable time after the notification, the court may entertain a petition to determine custody by the petitioner if it has jurisdiction pursuant to Section 3403.
(d) Where the court refuses to assume jurisdiction to modify the custody decree of another state pursuant to subdivision (b) or pursuant to Section 3414, the court shall notify the person who has legal custody under the decree of the other state and the prosecuting attorney of the appropriate jurisdiction in the other state and may order the petitioner to return the child to the person who has legal custody.
If it appears that the order will be ineffective and the legal custodian is ready to receive the child within a period of a few days, the court may place the child in a foster care home for that period, pending return of the child to the legal custodian. At the same time, the court shall advise the petitioner that any petition for modification of custody must be directed to (1) the appropriate court of the other state which has continuing jurisdiction or (2) if that court declines jurisdiction, to a court in a state which has jurisdiction pursuant to Section 3403.
(e) In appropriate cases, a court dismissing a petition under this section may charge the petitioner with necessary travel and other expenses, including attorney’s fees and the cost of returning the child to another state.
(f) In making a determination pursuant to subdivisions (a) to (e), inclusive, the court shall not consider as a factor weighing against the petitioner any taking of the child, or retention of the child after a visit or other temporary relinquishment of physical custody, from the person who has legal custody, if there is evidence that the taking or retention of the child was a result of domestic violence against the petitioner, as defined in Section 6211.
A Declaration Under the UCCJA Must Be Filed in the Proceeding — Family Code §3409
(a) Every party in a custody proceeding in the party’s first pleading or in an affidavit attached to that pleading shall give information under oath as to the child’s present address, the places where the child has lived within the last five years, and the names and present addresses of the persons with whom the child has lived during that period.
However, where there are allegations of domestic violence or child abuse, any addresses of the party alleging abuse and of the child that are unknown to the other party are confidential and may not be disclosed in the pleading or affidavit. In this pleading or affidavit, every party shall further declare under oath as to each of the following whether the party:
(1) Has participated, as a party, witness, or in any other capacity, in any other litigation concerning the custody of the same child in this or any other state.
(2) Has information of any custody proceeding concerning the child pending in a court of this or any other state.
(3) Knows of any person not a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child.
(b) If the declaration as to any of the above items is in the affirmative, the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and as to other matters pertinent to the court’s jurisdiction and the disposition of the case.
(c) Each party has a continuing duty to inform the court of any custody proceeding concerning the child in this or any other state of which the party obtained information during this proceeding.
Joining of Person not a Party Who has Physical Custody — Family Code §3410
If the court learns from information furnished by the parties pursuant to Section 3409 or from other sources that a person not a party to the custody proceeding has physical custody of the child or claims to have custody or visitation rights with respect to the child, it shall order that person to be joined as a party and to be duly notified of the pendency of the proceeding and of the person’s joinder as a party. If the person joined as a party is outside this state, the person shall be served with process or otherwise notified in accordance with Section 3405.
Party Ordered to appear in Person — Family Code §3411
(a) The court may order any party to the proceeding who is within or without this state to appear personally before the court. If that party has physical custody of the child, the court may order him or her to appear personally with the child. If the party who is ordered to appear with the child cannot be served or fails to obey the order, or it appears the order will be ineffective, the court may issue a warrant of arrest against the party and a protective custody warrant for the child, to secure the party’s or the child’s appearance or both, before the court.
The protective custody warrant for the child shall contain an order that the arresting agency shall place the child in protective custody, or return the child as directed by the court. The protective custody warrant may be served in any county in the same manner as a warrant of arrest and may be served at any time of the day or night.
(b) If a party to the proceeding whose presence is desired by the court is outside this state with or without the child the court may order that the notice given under Section 3405 include a statement directing that party to appear personally with or without the child and stating that failure to appear may result in a decision adverse to that party and the issuance of a warrant pursuant to subdivision (a).
(c) If a party to the proceeding who is outside this state is directed to appear under subdivision (b) or desires to appear personally before the court with or without the child, the court may require another party to pay to the clerk of the court travel and other necessary expenses of the party so appearing and of the child if this is just and proper under the circumstances.
Modification of Other State’s Decree — Family Code §3414
(a) If a court of another state has made a custody decree, a court of this state shall not modify that decree unless (1) it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this part or has declined to assume jurisdiction to modify the decree and (2) the court of this state has jurisdiction.
(b) If a court of this state is authorized under subdivision (a) and Section 3408 to modify a custody decree of another state, the court shall give due consideration to the transcript of the record and other documents of all previous proceedings submitted to it in accordance with Section 3423.
General Policies Extend Internationally — Family Code §3424
The general policies of this part extend to the international area. The provisions of this part relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature to custody rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.
The PKPA does not apply internationally so that you must rely on the UCCJA or The Hague October 25, 1980 convention on the Civil Aspects of International Child Abduction. (See below)
Custody Proceeding Under the UCCJA Have Calendar Priority — Family Code §3425
Upon the request of a party to a custody proceeding which raises a question of existence or exercise of jurisdiction under this part, the case shall be given calendar priority and handled expeditiously.
Recovery of Stolen Children — International Cases
A discussion of recovery stolen children requires mention of the Hague Convention on the Abduction of Children which gives authority for a member country to return a child that has been wrongfully taken or retained. The Hague Convention and the UCCJA overlap in certain areas and their timing requirements differ so it important to selectively use the most effective remedy.
The Hague October 25, 1980 convention on the Civil Aspects of International Child Abduction (The Hague Convention). As of June 1999 57 countries including the United States have become parties to this treaty. The Hague Convention is implemented by The International Child Abduction Remedies Act (ICARA) which is designated 42 USC § 11601 et seq.
The Hague Convention facilitates the recovery of stolen children from countries who are parties to the treaty. By filing a Petition with the State Department, the process of recovering children is commenced. The State Department (which is the United States Central Authority) then contacts then contacts the Central Authority in the Responding State and a hearing is conducted. The process can be facilitated by the client retaining an attorney in the Responding State to represent that client in the Hague Convention process.
If a client from a foreign jurisdiction is seeking to recover a stolen child in the United States, the Hague Convention may work concurrently with the PKPA and the UCCJA. In fact, those statutes, may be broader than The Hague Convention. It is best not to rely just on The Hague Convention, but to cite all the applicable law.
In some countries attorneys are appointed to represent clients in enforcing The Hague Convention, but in the United States, the State Department relies on volunteer attorneys and in some cases state attorney generals.
United States Code, Title 42 §11602 provides the following definitions:
(1) the term “applicant” means any person who, pursuant to the Convention, files an application with the United States Central Authority or a Central Authority of any other party to the Convention for the return of a child alleged to have been wrongfully removed or retained or for arrangements for organizing or securing the effective exercise of rights of access pursuant to the Convention;
(2) the term “Convention” means the Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980;
(3) the term “Parent Locator Service” means the service established by the Secretary of Health and Human Services under section 453 of the Social Security Act (42 U.S.C. 653);
(4) the term “petitioner” means any person who, in accordance with this Act, files a petition in court seeking relief under the Convention;
(5) the term “person” includes any individual, institution, or other legal entity or body;
(6) the term “respondent” means any person against whose interests a petition is filed in court, in accordance with this Act, which seeks relief under the Convention;
(7) the term “rights of access” means visitation rights;
(8) the term “State” means any of the several States, the District of Columbia, and any commonwealth, territory, or possession of the United States; and
(9) the term “United States Central Authority” means the agency of the Federal Government designated by the President under section 7(a).
United States Code, Title 42 §11603 provides the following remedies:
(a) The courts of the States and the United States district courts shall have concurrent original jurisdiction of actions arising under the Convention.
(b) Any person seeking to initiate judicial proceedings under the Convention for the return of a child or for arrangements for organizing or securing the effective exercise of rights of access to a child may do so by commencing a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.
(c) Notice of an action brought under subsection (b) shall be given in accordance with the applicable law governing notice in interstate child custody proceedings.
(d) The court in which an action is brought under subsection (b) shall decide the case in accordance with the Convention.
(e) (1) A petitioner in an action brought under subsection (b) shall establish by a preponderance of the evidence
(A) in the case of an action for the return of a child, that the child has been wrongfully removed or retained within the meaning of the Convention; and
(B) in the case of an action for arrangements for organizing or securing the effective exercise of rights of access, that the petitioner has such rights.
(2) In the case of an action for the return of a child, a respondent who opposes the return of the child has the burden of establishing
(A) by clear and convincing evidence that one of the exceptions set forth in article 13b or 20 of the Convention applies; and
(B) by a preponderance of the evidence that any other exception set forth in article 12 or 13 of the Convention applies.
(f) For purposes of any action brought under this Act
(1) the term “authorities”, as used in article 15 of the Convention to refer to the authorities of the state of the habitual residence of a child, includes courts and appropriate government agencies;
(2) the terms “wrongful removal or retention” and “wrongfully removed or retained”, as used in the Convention, include a removal or retention of a child before the entry of a custody order regarding that child; and
(3) the term “commencement of proceedings”, as used in article 12 of the Convention, means, with respect to the return of a child located in the United States, the filing of a petition in accordance with subsection (b) of this section.
(g) Full faith and credit shall be accorded by the courts of the States and the courts of the United States to the judgment of any other such court ordering or denying the return of a child, pursuant to the Convention, in an action brought under this Act.
(h) The remedies established by the Convention and this Act shall be in addition to remedies available under other laws or international agreements.