Domestic Violence
and the UCCJEA
August 8, 2013
Deborah Goelman, Esq.
Darren Mitchell, Esq.
Legal Resource Center on Violence Against Women
1
Summers v. Stone
Dawn Summers has filed for sole custody of her two children,
Amanda, age 4, and Jacob, age 2, in your court and asks you to
suspend the father’s visitation. Her petition states: “I fled to New
Orleans from Phoenix, Arizona two weeks ago with the children. My
parents live in New Orleans, and I wanted to feel safe. The
children’s father, Matt Stone, has abused me for years, and
continues to abuse me during visitation exchanges even though we
are separated. Last month, on July 20th, he pointed a gun at me in
front of the children when I picked them up from a visit. He
threatened that I would never see the children again if I did not
come back to live with him.”
The prior custody order from the Maricopa County Court (Arizona)
granted joint legal custody to both parents, physical custody to Ms.
Summers, and reasonable visitation to Mr. Stone.
2
Summers v. Stone
Do you have jurisdiction to grant the
requested relief?
3
The UCCJEA

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Developed in 1997
Designed to replace the UCCJA
Intended to reconcile differences between
the UCCJA and PKPA
So far 49 states, D.C., and the U.S. Virgin
Islands have enacted it
Several provisions address domestic
violence explicitly
4
UCCJEA Adoption
Who’s missing?
Massachusetts
5
Decision-Making Framework Under the
UCCJEA
1.
Is there an emergency?
(temporary emergency
2.
3.
4.
jurisdiction)
Is there an existing custody order and/or
custody proceeding in another state? If so, do
I have jurisdiction to modify any orders or to
issue a new order?
If there is no emergency or existing
order/proceeding, do I have initial child
custody jurisdiction?
If I have jurisdiction to enter an initial custody
order or to modify an existing order, should I
decline to do so?
6
Question 1
Is there an emergency?
(temporary emergency
jurisdiction)
7
Temporary Emergency Jurisdiction
Under the UCCJEA, temporary emergency jurisdiction
allows a court to enter an emergency order even if:


It does not have otherwise have jurisdiction to enter
an initial long-term order (e.g., it is not the home
state)
Another court already has issued a valid custody order
and that state has exclusive, continuing jurisdiction
By asking this question first (and including questions
about emergency jurisdiction in UCCJEA forms) judges
can permit parties to obtain emergency relief where 8
Temporary Emergency Jurisdiction
A simple option -- check box on New York
UCCJEA Petition:
“This Court should modify the order on a
temporary, emergency basis, pursuant to
Domestic Relations Law §76-c, because the
child(ren) (is) (are) presently in this State and
[check one or both boxes]:
 the child(ren) (has)(have) been abandoned;
 it is necessary in an emergency to protect
the child(ren), a sibling or siblings or parent
of the child(ren).”
9
Temporary Emergency Jurisdiction
Where “necessary in an emergency to protect
the child because the child, or a sibling or parent
of the child, is subjected to or threatened with
mistreatment or abuse”


Child must be present in the state
A court can exercise emergency jurisdiction in
domestic violence cases where the mother (but not
the child) has been abused
10
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Temporary Emergency Jurisdiction
A court may take jurisdiction to protect a child even if it
does not have initial child custody jurisdiction (e.g., it is
not the home state) and/or it does not have jurisdiction
to modify an existing order (another state has exclusive,
continuing jurisdiction)
Such orders are temporary; designed to give the parties
an opportunity to return to the state with preferred
jurisdiction
Judicial communication is required
 Once the court learns of an action in another state or
that an order has been issued in another state
 Purpose: “to resolve the emergency, protect the
safety of the parties and the child, and determine a
period for the duration of the temporary order.”
11
Judicial Communication
•
•
•
•
The court may allow the parties to participate in the
communication
If the parties are not able to participate, they must have
an opportunity to present facts and legal arguments
before a decision on jurisdiction is made
A record of a communication must be made, and the
parties must be informed promptly of the communication
and given access to the record
Communication between courts on schedules, calendars,
court records, and similar matters may occur without
informing the parties and no record of the
communication is necessary
12
Temporary Emergency Jurisdiction
Temporary emergency
Temporary
emergency order
order can
can become
become aa
permanent order if:
(1) the order so indicates;
(2) no other order has been entered or
proceeding commenced in another
court; and
(3) the issuing state becomes the
home state
13
What if Dawn had applied for a protection
order, including a custody provision, rather
than an emergency custody order?
Can you exercise jurisdiction under those
circumstances? What laws apply and how?
14
Emergency Jurisdiction via
Protection Order
The UCCJEA contemplates courts issuing temporary
emergency custody by means of domestic violence
protection orders
 State protection order codes may provide additional
authority for issuing custody provisions within protection
orders (see La. R.S. § 46:2136 (A)(3)).
 Courts should note compliance with both of these sources
of authority to help facilitate enforcement of the orders
 Courts should comply with the UCCJEA requirement to
communicate with another court having jurisdiction under
the UCCJEA

15
How can courts remove barriers
that prevent abused parents
from petitioning for emergency
relief?
Train
clerks and court personnel on the
availability of temporary emergency
relief
Revise forms to facilitate requests for
emergency relief and the presentation of
probative evidence re: the emergency
16
Question 2
Is there an existing custody
order and/or custody proceeding
in another state? If so, do I have
jurisdiction to modify any orders
or to issue a new order?
17
Modification Jurisdiction
Let’s assume that Dawn filed her
petition in your court but did not allege
an emergency. Would you have
jurisdiction to modify the order?
18
Modification of Custody
Determinations
Concept of “exclusive, continuing
jurisdiction” limits the ability of a nondecree state to modify a valid existing
custody order or to enter a new one
governing the same parties and child if
there is an existing order
19
Exclusive, Continuing
Jurisdiction
Statutory Language:
(A)“Except as otherwise provided [in the UCCJEA’s
section on emergency jurisdiction], a court of this state
which has made a custody order [consistent with the
UCCJEA] has exclusive, continuing jurisdiction over the
order until:
1) a court of this state determines that neither the
child, nor the child and one parent, nor the child and a
person acting as a parent have a significant connection
with this state and that substantial evidence is no
longer available in this state concerning the child’s
care, protection, training, and personal relationships,
20
or
Exclusive, Continuing
Jurisdiction
Statutory Language:
“
2) a court of this state or a court of another state
determines that the child, the child’s parents, and any
person acting as a parent do not presently reside in
this state
B) A court of this state which has made a child-custody
determination and does not have continuing, exclusive
jurisdiction may modify the determination only if it has
jurisdiction to make a initial determination”
The UCCJEA also includes parallel “modification”
language with consistent standards for the
modification state court
21
Exclusive, Continuing Jurisdiction
What does it mean?:
The new state court may modify the existing order if:
(1) The court in the original decree state found that no
one has a significant connection with the state and
that there is no longer substantial evidence in the
state; or
(2) The new court determines that the child, the
parents, and any person acting as a parent do not
presently reside in the original decree state; or
…
22
Exclusive, Continuing Jurisdiction
What does it mean?:
The new state court may modify the existing order if:
(3) The original court declines to exercise modification
jurisdiction on inconvenient forum grounds; or
(4) The new court determines that it has temporary
emergency jurisdiction (temporary modification only;
requires judicial communication with the issuing court
to determine next steps)
23
Question 3
If there is no emergency or
existing order/proceeding, do I
have initial child custody
jurisdiction?
24
Let’s return to Dawn and Matt and assume
that the family lived together for fifteen
years in Arizona and a custody order never
was entered. Eight months ago, Dawn
relocated to Louisiana with the two children,
and now she petitions your court for a
custody order.
25
Question 3
Can you hear the custody case?
(and make an initial child custody
determination)
26
UCCJEA

Jurisdictional bases:
 Home state trumps other bases (except
emergency)
 Significant connection
 “More appropriate forum” jurisdiction
 “No other state” jurisdiction
27
Louisiana is the home state
because Dawn and the children
have lived there for eight months
28
Home State Jurisdiction
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Extended Home State Rule
Temporary Absence
Child Less Than Six Months Old
Home State due to Emergency or
Disaster (see La. Rev. Stat. §
13:1802(7)(b))
29
How is the home state defined?
“Home state” means the state in which the child
lived with a parent or a person acting as parent
for at least 6 consecutive months immediately
before the commencement of a child custody
proceeding. In the case of a child less than 6
months of age, the term means the state in
which the child lived from birth with any of the
persons mentioned. A period of temporary
absence of any of the mentioned persons is part
of the period.
30
Extended Home State
Assume that Dawn left Arizona 5 months ago and at that
point Matt filed for custody in AZ. Does the AZ court
have jurisdiction despite the absence of the children?
YES, as long as Matt remained in AZ:
 A home state retains jurisdiction for six months even if a
party or the child have left the state (under the “Initial
Child Custody Jurisdiction” provision of the UCCJEA, a
state has jurisdiction if it “was the home state of the
child within 6 months before the commencement of the
proceeding…”)
31
 This doctrine sometimes is known as the extended home
Temporary Absence
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A home state retains jurisdiction even if a
party or child has left the state for a
“temporary absence”
“Temporary absence” is not defined by statute,
but may be defined under a state’s case law
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Courts have differed in their analysis of what
constitutes a “temporary absence”
Some look only to the subject intent of the parties;
others take a totality of the circumstances approach
In some instances, absence of many months have
been deemed to be “temporary,” especially in the
32
case of military deployments/assignments
Emergency or disaster

When a parent or a person acting as a parent is
required to evacuate this state with a minor
child because of an emergency or disaster
declared under the provisions of R.S. 29:721 et
seq., or declared by federal authority, and for an
unforeseen reason resulting from the effects of
such emergency or disaster is unable to return
to this state for an extended period of time, this
state shall be determined to be the home state if
the child lived with his parents, a parent, or a
person acting as his parent for a period of at
least twelve consecutive months immediately
preceding the time involved. La. Rev. Stat. §
33
13:1802(7)(b).
Additional Jurisdictional Bases
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Significant Connection Jurisdiction
More Appropriate Forum Jurisdiction
No Other State (Vacuum) Jurisdiction
34
Additional Jurisdictional Bases
Assume now that Dawn does not raise the
issue of domestic violence and that she and
the children relocated to New Orleans just
three months ago. Dawn chose to relocate to
New Orleans because her parents and two
siblings live there, and she and the children
have visited frequently in the past. The
children have spent part of the last three
summers with Dawn’s family in New Orleans.
Dawn has filed for dissolution and for custody
of the children in your court in New Orleans.
35
Is there any other basis to take
jurisdiction over this case?
(assume Dawn does not mention domestic
violence nor allege any emergency
circumstances)
36
Does the analysis change if Matt
decides to move to Alabama
one month after Dawn leaves?
YES
37
These situations raise the issue
of significant connection
jurisdiction
38
Significant Connection
Jurisdiction
Available as a jurisdictional base only if there is no
home state or if the home state has declined to
exercise jurisdiction and
(i) “the child and the child’s parents, or the child and
at least one parent or a person acting as a parent,
have a significant connection with this state other
than mere physical presence; and
(ii) substantial evidence is available in this state
concerning the child’s care, protection, training, and
personal relationships”
39
Significant Connection
Jurisdiction

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There is no need for a court to engage in a
significant connection analysis where a home
state exists
The home state trumps other jurisdictional bases
under federal law and under the UCCJEA
Note, however, that a state with emergency
jurisdiction can issue a short-term order that
trumps an order from the home state
40
Question 4
If I have jurisdiction to enter an
initial custody order or to modify
an existing order, should I
decline to do so?
41
Inconvenient Forum
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Court with preferred jurisdiction may decline
to exercise jurisdiction at any time if it
determines that it is an inconvenient forum
and that a court of another state is a more
appropriate forum
May be raised by motion of a party, the
court’s own motion, or request of another
court
Court must consider all relevant factors,
including a specified list of 8 factors
42
Inconvenient Forum
Inconvenient forum factors explicitly
include:
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Whether domestic violence has occurred and is
likely to continue and which state could best
protect the parties and the child
The length of time the child has resided
outside of the state
The distance between the two courts
The relative finances of the parties
43
Inconvenient Forum
Inconvenient forum factors explicitly include
(continued):
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The agreement of the parties
The nature and location of the evidence
including the child’s testimony
The ability of each court to decide the issue
expeditiously and the procedures necessary to
present the evidence
The familiarity of each court with the facts and
issues in the pending litigation
44
Inconvenient Forum
Practice Exercise: Tina Blue v. Mark Blue
45
Inconvenient Forum
•
•
•
The presence and effect of domestic violence
is the first factor a court must consider when
considering an inconvenient forum request
Courts have concluded that this factor can
outweigh the other factors
The relative finances of the parties also can be
relevant in many domestic violence cases,
since batterers often exert financial control
over survivors
46
Inconvenient Forum
In Re Stoneman v. Drollinger (64 P.3d 997, Mont.
2003)
Mother relocated from Montana to Washington with four
children, and Washington trial court issued a permanent
protection order. Mother then filed a motion requesting
that the Montana court decline jurisdiction under the
UCCJEA, which the trial court denied. The Supreme
Court of Montana reversed, holding that the lower court
erred by denying mother’s motion. The trial court failed
to consider which forum could best protect mother and
children from further abuse when evaluating whether
transfer of proceedings to Washington was appropriate.
47
Inconvenient Forum
In Re Stoneman v. Drollinger (cont.)
The Supreme Court of Montana held that “the UCCJEA
places domestic violence at the top of the list of factors
that courts are required to evaluate when determining
whether to decline jurisdiction as an inconvenient forum
for child custody proceedings.” It ordered the trial court
to communicate with the Washington court, and, if
transfer could be arranged, to decline jurisdiction based
on inconvenient forum. The Supreme Court of Montana
urged trial courts “to give priority to the safety of victims
of domestic violence when considering jurisdictional
issues under the UCCJEA.”
48
Why is declining jurisdiction often
appropriate in cases involving
domestic violence?


If the parties are in different states because of
the violence, it could be unsafe for the survivor
to return to the home state to litigate a
custody case (see e.g., commentary to UCCJEA
Section 207)
A survivor may not have the financial means to
return to the home state due to the
perpetrator's financial abuse
49
Why is declining jurisdiction often
appropriate in cases involving
domestic violence?


A survivor may have fled to a safe haven
where family members can offer secure
shelter, shared housing, childcare, or
employment opportunities, increasing the
survivor’s ability to leave the abuser
Due to separation violence, a survivor may
be at increased risk for physical violence or
homicide when she takes steps to leave;
forcing a return to a state where the batterer
resides could be deadly
50
Why is declining jurisdiction often
appropriate in cases involving
domestic violence?



A perpetrator may litigate a jurisdictional or
custody issue as a means to punish a survivor
for leaving (see, e.g., Bancroft & Silverman, The
Batterer As Parent, 2002)
Denying a survivor’s relocation or inconvenient
forum request permits a batterer to continue to
control a survivor’s life
Domestic violence was a major consideration in
the drafting of the UCCJEA, and the
inconvenient forum provision contains an explicit
tool for judges to use in domestic violence cases
51
National Organizations
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Legal Resource Center on Violence Against
Women
(301) 270-1550, lrc@lrcvaw.com
National Center on Protection Orders and Full
Faith and Credit
(800) 903-0111, ext. 2
National Council of Juvenile and Family Court
Judges, Child Protection and Custody
(800) 527-3223
52
This presentation was supported by Grant
No. 2009-TA-AX-K021 awarded by the
Office on Violence Against Women, U.S.
Department of Justice. The opinions,
findings, conclusions, and
recommendations expressed in this
presentation are those of the authors and
do not necessarily reflect the views of the
Department of Justice, Office on Violence
Against Women.
53