Wednesday, October 3, 2007
Wednesday, October 03, 2007
By James Jennings
When does a state have jurisdiction to modify a custody order for another state?
The guiding principle is that once the Court has made an initial custody order under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), that court has exclusive, continuing jurisdiction over the case. Continuing means that the case is kept open; exclusive means that no other court has the authority to act in the case. Hence a court in California cannot modify a child custody order issued in Arizona if Arizona has exclusive continuing jurisdiction because of the compliance with the UCCJEA.
Another state can modify Arizona’s order only if Arizona loses its exclusive continuing jurisdiction.
There are 2 circumstances under which a state can loose its exclusive continuing jurisdiction:
First when the child and its parents no longer reside in the State.
Second, when the court with exclusive continuing jurisdiction determined that the child and parents do not have a significant connection to the state and that substantial evidence is no longer available in the state concerning the child’s care, protection, training, and personal relationships.
Suppose, for example, that California issued an initial custody order and has exclusive continuing jurisdiction. A dissatisfied parent then takes the child to Arizona. Can an Arizona court modify the California order? Not if one of the Parents remains in California. The dissatisfied parent would have to go backed to California to modify its order or ask the California court to declare that the child and parents do not have a significant connection to California and that substantial evidence concerning the child is no longer available in California.
An exception exists when there's an emergency, but only on a temporary basis. A state court with temporary emergency custody jurisdiction can modify the custody decision of any other court if the child is present in the state and the child has been abandoned or if there is an emergency requiring protection of the child because the child, a sibling, or parent is mistreated or abusing or threatening mistreatment or abuse. If an Arizona court concluded that it had temporary emergency jurisdiction because of abandonment or violence in Arizona, the Arizona court could issue a custody order that would have the effect of modifying the California order. However, Temporary jurisdiction is temporary. A Court with the home state-California in this example-can step in and change the temporary emergency custody order of Arizona.
There is another circumstance in which California might yield to Arizona. The state with proper custody jurisdiction under of the UCCJEA can always make a determination and another state is a more convenient forum and thereby relinquishes its jurisdiction. If California decides that it is an inconvenient forum and that Arizona is a more convenient forum, Arizona would thereby obtain full jurisdiction to act in the case.
If one parent has dirty hands, a Court might decline to exercise its jurisdiction if doing so would not harmed child. Suppose, for example that a parent engages in plain forum shopping by moving a child from state to state for the sole purpose of trying to find a friendly court. In the unlikely event that this parent eventually finds a court that has jurisdiction under the UCCJEA, this Court can decline to take the case because of the Parent's dirty hands. But the court will make such a decision only if it determines that the refusal to take the case was not harmed child.