Interstate child custody and visitation issues have long proved a challenge for the family law practitioner. Prior to addressing the substantive issues in a case, litigators are forced to expend substantial cost and time in dealing with the procedural and jurisdictional issues in cases involving an ‘interstate’ child.
For decades, legislatures across the country tried to provide a framework to resolve interstate child custody. In an effort to resolve these conflicts with courts of other states, in 1968 the National Conference of Commissioners on State Laws (the “Conference”) proposed the Uniform Child Custody Jurisdiction Act (“UCCJA”). Illinois enacted the UCCJA in 1979.1
After almost 30 years of monitoring the effectiveness of the UCCJA, the Conference decided to revisit the problem of the interstate child. They cited two primary goals in doing so. First, the Conference found it necessary to revise the law on child custody jurisdiction based on newly developed federal law enacted to address the myriad examples of inconsistent case law results. Second, the Conference attempted to provide a uniform procedure to enforce interstate custody and visitation orders. In 1997, the conference offered an updated resolution to this problem by approving and recommending the enactment of the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”) in all 50 states.2 The UCCJEA was enacted in Illinois on July 8, 2003 and took effect on January 1, 2004, replacing the UCCJA.3
This article is intended to highlight the key provisions of the UCCJEA for the practitioner, and is not intended as a treatise on the deep complexities of the statute.
Summary of Revisions to UCCJA that are contained in the UCCJEA. In the Prefatory note to the UCCJEA, the Conference summarized the revisions to the jurisdictional aspects to the UCCJA as follows:
Home State Priority: The prior UCCJA authorized four independent bases for jurisdiction, which often resulted in more than one court attempting to exercise jurisdiction over the custody issues. The UCCJEA clearly defines and prioritizes the home state jurisdiction in Section 201.4
Clarification of Emergency Jurisdiction: The UCCJA failed to specify the duration of the emergency jurisdiction, which often resulted in simultaneous proceedings and conflicting custody orders. The UCCJEA deals specifically with this issue in Section 204.5
Exclusive Continuing Jurisdiction for the State that Entered the Decree. The UCCJA failed to clearly enunciate that the initial state to grant the decree would retain exclusive continuing jurisdiction and also failed to address the issue of relinquishment of jurisdiction, which often resulted in simultaneous proceedings and conflicting custody orders. The UCCJEA deals specifically with this issue in Sections 110, 202, and 206.6
Specification of What Custody Proceedings are Covered. The UCCJA failed to specifically define the types of proceedings that were governed by the UCCJA, which resulted in states have rendered conflicting decisions regarding certain types of proceedings. The UCCJEA deals with this issue in Section 102 with a detailed definition of the proceedings that are covered.7
Role of “Best Interests.” The UCCJA contained a provision that based the court’s jurisdiction on the “best interests” standard, which often resulted in simultaneous proceedings and conflicting jurisdictional findings.8 The UCCJEA removes the “best interests” standard as it relates to jurisdiction, which allows for a clear distinction between the jurisdictional standards and the substantive standards relating to custody.
Other Changes. There are a number of other amendments that were made to harmonize the provisions of the UCCJEA with those of the Uniform Interstate Family Support Act. The Conference noted that “one of the policy bases underlying this Act is to make uniform the law of interstate family proceedings to the extent possible, given the very different jurisdictional foundations.”
As one of the major purposes of the revisions to the UCCJA was to provide for a uniform remedy for enforcement of interstate visitation and custody, the Prefatory note to the UCCJEA summarized the enforcement provisions to the UCCJA as follows:
• The UCCJEA provides for a simple procedure for registering a custody determination in another State.
• The UCCJEA provides for an expedited procedure based on habeas corpus.
• The UCCJEA enables the court to issue a warrant to take physical possession of a child if the court is concerned that the parent, who has physical custody of the child, will flee or harm the child.
• The UCCJEA allows the court to seek assistance from public authorities, such as prosecutors, in the enforcement process.
Definitions. Section 102 of the UCCJEA contains numerous definitions related to interstate proceedings.9
(4) “Child-custody proceeding” means a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. The term does not include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under Article 3.10
(7) “Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. In the case of a child less than six 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.11
Appearance and Limited Immunity. Section 109 of the UCCJEA provides a safeguard for an out of jurisdiction party who is fighting for rights related to his or her child and prevents that individual from being forced into submitting himself or herself to the jurisdiction of the court.12 Generally a court of this state may exercise jurisdiction in any action in which a person has been served while present within the state.13 With a limited exception, Section 109 of the UCCJEA enables a party to participate in a child-custody proceeding without subjecting themselves to the personal jurisdiction of the court in additional matters. Thus, due to the protection of Section 109 a party may physically appear regarding an issue of interstate custody without incurring additional jurisdictional exposure.
Initial Jurisdiction. Determining which court shall have initial jurisdiction is a vital component of interstate custody proceedings. Initial custody proceedings are governed by Section 201 of the UCCJEA.14 The UCCJEA provides a method that results in a single court having jurisdiction to make the initial child custody determination. As a practice point, custody proceedings can include matters that deal solely with visitation.15 His is in contrast to the UCCJA, which allowed multiple courts to exercise jurisdiction over an initial custody determination.
The first step to determining which state has jurisdiction to make an initial child custody determination is to identify the child’s home state. In determining home state, the court considers the state in which a child lived with a parent for at least six consecutive months immediately prior to a child-custody proceeding. However, a temporary absence from the state will not impact the six month residency requirement. Applying Section 201(a)(1), if the state is determined to be the home state of the child on the date of the commencement of the proceedings, then the state shall have initial child-custody jurisdiction.16
Example 1: Sally and Tom and their child Gabe live in Illinois. Gabe is seven months old and has lived in Illinois his whole life. Sally has filed for custody of Gabe. Result: Illinois is Gabe’s home state and Illinois shall have jurisdiction to make the initial child-custody determination.
Example 2: Sally and Tom and their child Gabe live in Illinois. Gabe is two years old. Gabe spent the first 18 months of his life in Michigan but has lived in Illinois for the past six months. During the past six months, Gabe spent one month visiting his grandmother in Michigan. Sally has filed for custody of Gabe in Michigan. Result: Illinois is Gabe’s home state and Illinois shall have jurisdiction to make the initial child-custody determination. As Gabe’s absence from Illinois was only temporary it does not affect the six month period necessary to identify Gabe’s home state. Therefore, Michigan is not Gabe’s home state and Michigan does not have jurisdiction to make the initial child-custody determination. As an alternative under Section 201(a)(1), if a state was the home state of the child and the child leaves the state, the state shall still have initial child-custody jurisdiction as long as it has been less than six months before the commencement of the proceeding and a parent continues to live in the state.
Example: Sally and Tom and their child Gabe live in Illinois for the first six months of Gabe’s life. At the beginning of the seventh month, Sally and Gabe move to Michigan while Tom remains in Illinois. After living in Michigan for five months, Sally has filed for custody of Gabe in Michigan. Result: Illinois is Gabe’s home state and Illinois shall have jurisdiction to make the initial child-custody determination. As Illinois was Gabe’s home state within six months of Sally filing for custody and Tom continues to reside in Illinois, Michigan is not Gabe’s home state and Michigan does not have jurisdiction to make the initial child-custody determination.
One failing of the UCCJA is that it did not account for a situation in which a child is less than six months of age resulting in conflicting decisions between the states. In contrast, the UCCJEA provides that when a child is less than six months of age, the home state is the state in which the child lived from birth.17
Example: Sally and Tom and their child Gabe live in Illinois. Gabe is five months old and has lived in Illinois his whole life. Sally has filed for custody of Gabe. Result: Illinois is Gabe’s home state and Illinois shall have jurisdiction to make the initial child-custody determination.
The only way in which a state that is not a “home state” may exercise jurisdiction is if the “home state” declines to exercise jurisdiction on the basis that there is a more convenient forum under Section 207, or on the basis that a party has engaged in unjustifiable conduct under Section 208. In the event there is no “home state,” the court must look to a forum non conveniens analysis.18
Example: Sally and Tom and their child Gabe lived in Illinois until Gabe turned two years old. When Gabe turned two, the parties all moved to southern Michigan. Four months later, Sally and Gabe moved to northern Indiana, while Tom remained in Michigan. Gabe still receives medical care in Michigan and attends daycare in Michigan. Furthermore, Gabe’s relatives all live in Michigan. Three months after the parties moved to northern Indiana, Sally filed for custody in Indiana. There is no state that fits the definition of the home state and the court must look to a forum non conveniens analysis. Based on this scenario, the court could find that the appropriate forum is Michigan, even though the child currently resides in Indiana.
While a practitioner might think the above scenario farfetched, a similar situation occurred in In Re Marriage of Diaz.19 The parties married in Illinois in March 2003 and resided together there until August 2003, when Father moved to Michigan. Mother remained in Illinois until around November 2003, and then moved to Michigan. Then Mother and Father lived together in Michigan until around January 2004, when Mother returned to Illinois to live with her mother. Over the next few months, Mother moved back and forth between Michigan and Illinois. In May 2004, Mother returned to live in Illinois.
Child was born in Illinois on October 22, 2004. Mother and Child lived in Illinois until December 19 or 20, 2004, when Mother and Child moved to Michigan to live with Father. The family lived together in Michigan until May 26, 2005, when Mother and Child returned to Illinois. On June 7, 2005, Mother filed a petition for dissolution of marriage in Illinois. The Court found that Child did not live within either Illinois or Michigan for at least six consecutive months prior to June 7, 2005, and neither Illinois nor Michigan became Child’s home state.
Since Child had no home state, the Court made a determination under Section 201(a)(2). The Court’s decision was that Illinois was the proper Jurisdiction. The Court considered the following factors in its decision: (1) Child had extended family in Illinois; (2) Mother received government assistance, including food supplement, in Illinois; and (3) Mother attended counseling in Illinois.
Continuing Exclusive Jurisdiction. The UCCJEA provides that the court that makes the initial child custody determination shall have continuing exclusive jurisdiction over the determination until there is a finding that: (1) the parties have no significant connection to the state, and the evidence is no longer available in this state, or (2) the parties are no longer present in the state.20
Jurisdiction to Modify Determination. Pursuant to Section 203, a court does not have jurisdiction to modify a child-custody determination made by a court of another state unless the state would have jurisdiction to make an initial determination under Section 201(a)(1) or (2) and: the court of the other state determines it no longer has exclusive, continuing jurisdiction under Section 202 or that a court of this state would be a more convenient forum under Section 207; or a court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.21
Simultaneous Proceedings and Emergency Jurisdiction. Pursuant to Section 204, a court may exercise temporary emergency jurisdiction if the child is present in the state and the child has been abandoned or it is necessary to protect the child from abuse. In the event there is no previous child-custody determination and a child-custody proceeding has not been commenced in a court having jurisdiction under Sections 201 through 203, the emergency order shall remain in effect until such a proceeding is commenced. In the event a child-custody proceeding is not commenced and the state exercising emergency jurisdiction becomes the “home state,” the emergency order shall become final. If the court exercising emergency jurisdiction is informed that a child-custody proceeding has been commenced in a state having jurisdiction under Sections 201 through 203, the court shall immediately communicate with the other court to determine (1) the duration of the emergency order and (2) the appropriate state to exercise jurisdiction.22
Except as provided for in Section 204, a court may not exercise jurisdiction under the UCCJEA if a proceeding has been commenced in a court of another state having jurisdiction substantially in conformity with the UCCJEA, unless the other proceeding has been stayed or terminated by the court of the other state under a forum non conveniens analysis. If the initial court of the other state having jurisdiction substantially in conformity with the UCCJEA does not determine that the other state is a more appropriate forum, the latter court proceeding shall be dismissed.23
Registration and Enforcement. Section 305 of the UCCJEA provides the procedures for registering a child-custody determination issued by a court of another state. Once the required documents are provided to the clerk of court, the registering court shall cause the judgment to be filed as a foreign judgment and provide notice to other parties of interest. A person seeking to contest the validity of a registered order must request a hearing within 20 days after service of the notice and allege: (1) the issuing court did not have jurisdiction; (2) the child-custody determination has been vacated, stayed, or modified; or (3) proper notice was not given. If a timely request for a hearing to contest the validity of the registration is not made, the registration is confirmed as a matter of law.24 Thereafter, the enforcing state may utilize any remedy under its laws to enforce the other state’s child-custody determination under Section 306.25
Under Section 302 of the UCCJEA, a court may enforce an order for the return of the child made under the Hague Convention. Each state shall recognize and enforce a child-custody determination made in another state in substantial conformity with the UCCJEA.26 pursuant to Section 304 of the UCCJEA, a court that does not have jurisdiction to modify a child-custody determination may issue temporary orders enforcing visitations schedules made by another state.27
Conclusion. The UCCJEA provides a strong framework for resolving the procedural and jurisdictional issues in cases involving an interstate child and has helped resolved many of the issues encountered previously with the UCCJA. A detailed reading of the UCCJEA will address most questions regarding interstate custody proceedings. However, when involved in an interstate child custody proceeding, the practitioner must not only review the UCCJEA but also the various related statutes and case law. Further, as the UCCJEA has been in effect for less than ten years, it may be beneficial to also review cases which were decided under the UCCJA, the predecessor of the UCCJEA.
1 750 ILCS 35/1, et seq.
2 See Uniform Child Custody Jurisdiction and Enforcement Act (1997) drafted by the National Conference of Commissioners on Uniform State Laws.
3 See P.A. 93-108.
4 750 ILCS 36/201.
5 750 ILCS 36/204.
6 750 ILCS 36/110, 750 ILCS 36/202, 750 ILCS 36/206. See also In re Joseph V.D., 373 Ill.App.3d 559, 868 N.E.2d 1076 (2d Dist. 2007) (Holding that if the court determines that a child-custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this Act, the court of this State shall stay its proceeding and communicate with the court of the other state.)
7 750 ILCS 36/102.
8 See Uniform Child Custody Jurisdiction and Enforcement Act (1997) drafted by the National Conference of Commissioners on Uniform State Laws.
9 750 ILCS 36/102.
10 750 ILCS 36/102(4).
11 750 ILCS 36/102(7).
12 750 ILCS 36/109.
13 735 ILCS 5/2-209.
14 750 ILCS 36/201.
15 See In re Marriage of Blanchard, 305 Ill.App.3d 348, 712 N.E.2d 374 (2d dist. 1999).
16 750 ILCS 36/201(a)(1).
17 750 ILCS 36/102(7).
18 750 ILCS 36/201(a)(2).
19 See In re Marriage of Diaz, 363 Ill.App.3d 1091, 845 N.E.2d 935 (2d Dist. 2006).
20 750 ILCS 36/202. See also In re Marriage of Akula, 404 Ill.App.3d 350, 935 N.E.2d 1070 (1st Dist. 2010) (Finding by Indian family court that parties now resided in India was in substantial conformity with UCCJEA and therefore Illinois lost continuing exclusive jurisdiction.
21 750 ILCS 36/203,
22 22 750 ILCS 36/204.
23 750 ILCS 36/206.
24 750 ILCS 36/305.
25 750 ILCS 36/306.
26 750 ILCS 36/302.
27 750 ILCS 36/304.
Anthony E. Vechiola is an Associate Attorney at Sullivan Taylor & Gumina, P.C. and concentrates his practice in the area of family law, including: dissolution of marriage; child custody and visitation disputes; paternity matters; child support; maintenance; property allocation; and orders of protection. Anthony is a graduate of the John Marshall Law School and Benedictine University.
Michael R. Hudzik is a graduate of DePaul University College of Law. Michael has past legal experience in criminal law, commercial litigation, real estate transactions, and estate planning. Since joining Sullivan Taylor Gumina, P.C. in 2011, Michael has practiced exclusively in the area of family law.