Child Custody and Visitation

1. Child Custody and Visitation Part 1 - Jurisdiction

2. May v Anderson, 1953 • Predates state custody jurisdiction statutes • Father not entitled to enforce, via a habeas corpus petition, a custody order in his favor obtained in a state that did not have personal jurisdiction over the mother • Federal “full faith and credit’ clause does not mandate Ohio to recognize Wisconsin ex parte custody order even though the children lived there when the order was made

3. May v Anderson – Ignored? • Modern jurisdictional statutes on the state and federal level have supplanted May v Anderson • UCCJA (Uniform Child Custody Jurisdiction Act) • UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act) • PKPA (federal Parental Kidnapping Prevention Act) • Hague Convention on International Child Abduction

4. UCCJEA (enacted in Florida as Fl. Stat. § 61.5101 et seq.) • UCCJEA drafted in 1997 by the National Conference of Commissioners on Uniform State Laws (NCCUSL) • Rapidly replacing older UCCJA in nearly every state • Adopted in 40 states and D.C, pending in 5 others as of early 2005 • Designed to bring the UCCJA into compliance with the federal Parental Kidnapping Prevention Act (PKPA), which focused more on continuing exclusive jurisdiction that did the UCCJA

5. UCCJA (old law) basis for custody jurisdiction • Original statute (UCCJA, adopted in all 50 states), had the four ways a state could obtain jurisdiction over children to decide custody: • The child's home state; • Significant connection between state and parties to a child custody dispute; • Emergency jurisdiction when the child is present and the child's welfare is threatened; and, • Presence of the child if there is no other state with another sound basis for taking jurisdiction.

6. Importance of “Home State” under UCCJA • The original drafters of the UCCJA always thought that the home state of the child was the best state within which to find the information for making a custody decision in the best interests of the child • However, it was also assumed that once a court took jurisdiction on any other acceptable basis, that state should be able to proceed without delaying to determine if some other state has home state status.

7. What is “home state”? • The state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding • In the case of a child younger 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 Fl. Stat. § 61.503(7)

8. But then came the federal PKPA • Enacted by Congress in 1981, it was designed to serve same purpose as UCCJA, eliminate interstate battles over custody jurisdiction • Although the UCCJA did not give first priority to the home state of the child in determining which state may exercise jurisdiction over a child custody dispute. The PKPA does. • The PKPA also provides that once a state has exercised jurisdiction, that jurisdiction remains the continuing, exclusive jurisdiction until every party to the dispute has exited that state. This is a similar continuing exclusive jurisdiction (CEJ) provision found in UIFSA • As a federal statute, PKPA cannot directly impact state jurisdictional requirements, but it does govern standards for interstate enforcement of orders based on state jurisdictional standards

9. Which led to the UCCJEA • The UCCJEA supports the PKPA position • Any state that is not the home state of the child must defer to the home state, if there is one, in taking jurisdiction over a child custody dispute. • Temporary emergency jurisdiction may be taken, but only long enough to secure the safety of the threatened person and to transfer the proceeding to the home state, or if none, to a state with another ground for jurisdiction.

10. What is a “custody proceeding” under UCCJEA? • A proceeding in which legal custody, physical custody, residential care, 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 Fl. Stat. § 61.503(4)

11. Continuing Exclusive Jurisdiction under the UCCJEA • If a state once takes jurisdiction over a child custody dispute, it retains jurisdiction so long as that state, by its own determination, maintains a significant connection with the disputants or until all disputants have moved away from that state • The old UCCJA allowed jurisdiction to shift if the initial ground for taking jurisdiction ceased to exist • if a state takes jurisdiction over a child custody dispute because that state is the home state of the child, and the child subsequently establishes a new home state, jurisdiction can shift to the new home state, even if one parent remains in the child's original home state. • The UCCJEA would not allow the jurisdiction to shift in this fashion, keeping it in the original home state so long as the parent remains there.

12. Temporary Emergency Jurisdiction under UCCJEA • Under the old UCCJA, grounds for taking emergency jurisdiction are on an equal footing with the other grounds for taking jurisdiction, including the home state ground • The UCCJEA provides for temporary emergency jurisdiction that can ripen into continuing jurisdiction only if no other state with grounds for continuing jurisdiction can be found or, if found, declines to take jurisdiction. • Because of the priority given to the home state of the child, the home state will most often be the state from which continuing jurisdiction is exercised

13. The “E” in UCCJEA refers to Enforcement • The UCCJEA adds enforcement provisions to the jurisdictional provisions • Interstate enforcement of custody and visitation decrees has proved frustrating to parents and to the courts • The UCCJEA requires a state to enforce a custody or visitation order from another state that conforms substantially with the jurisdictional provisions of the UCCJEA

14. Tribal court jurisdiction? • Absent from the UCCJA, the new UCCJEA includes an optional provision extending recognition and enforcement to custody orders of tribal courts as if they were the court of another state • Enacted in Florida as Fl. Stat. §61.505

15. Overall impact of UCCJEA • Reinforce the impact of the PKPA (which is an enforcement statute, not truly a jurisdictional statute) • Priority for home state jurisdiction, continuing exclusive jurisdiction and temporary emergency jurisdiction mean that orders made pursuant to the UCCJEA will have the full weight of the Full Faith and Credit Clause of the U.S. Constitution behind them

16. Parental Kidnapping Prevention Act (PKPA) Enforcement Requirements, 28 USC § 1738A • A state’s custody order must be enforced under full faith and credit by another state if the state issuing the order assumed jurisdiction under one of the following: • The state is the child’s home state • No other state is the home state and it is in the child’s best interests for the state to assume jurisdiction based on a significant connection with the child • Emergency jurisdiction needed to protect child physically present in the state • No other state has jurisdiction based on these standards • The state has continuing jurisdiction pursuant to statute

17. Federal Jurisdiction under PKPA? • Although the PKPA is a federal statute, it does not grant federal courts jurisdiction to resolve interstate child custody disputes. Thompson v Thompson, 484 U.S. 174 (1988) • Instead, it imposes a federal duty on state courts to grant full faith and credit to the custody orders of another state if that state assumed jurisdiction consistent with the standards in the PKPA

18. Foreign Orders • Both PKPA and UCCJEA provide that its principles apply to orders of foreign nations as well as between states • UCCJEA SECTION 105. INTERNATIONAL APPLICATION OF [ACT] (Fla. Stat. §61.506) • (a) A court of this State shall treat a foreign country as if it were a State of the United States for the purpose of applying [Articles] 1 and 2 • (b) Except as otherwise provided in subsection (c), a child-custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this [Act] must be recognized and enforced under [Article] 3 • (c) A court of this State need not apply this [Act] if the child custody law of a foreign country violates fundamental principles of human rights.

19. Hague Convention on International Child Abduction • International treaty ratified by U.S. and most other countries. • Implemented by the International Child Abduction Remedies Act (ICARA), 42 USC § 11601 et seq • Custody is to be determined by courts of nation of child’s “habitual residence.” • Provides for immediate return of child “wrongfully removed” from nation of habitual residence.

20. Exceptions to immediate return • Prove by clear and convincing evidence: • Return would expose child to grave risk of physical or psychological harm or otherwise place the child in an intolerable situation • Return would violate principles of related to the protection of human rights and fundamental freedoms

21. Other exceptions to immediate return • Prove by a preponderance of the evidence that: • The petition was not filed within a year after the removal and the child is well-settled in the new environment • The plaintiff was not actually exercising custody rights at the time of the removal

22. What can court decide? • Under Hague/ICARA court can only decide the international abduction claim (whether or not to return child to place of habitual residence) • Cannot decide merits of underlying custody claim • Federal district courts have concurrent jurisdiction with state courts to hear Hague/ICARA petitions

23. “Criminal” Child Custody Issues? • Federal kidnapping statute (18 USC § 1201) does not apply to parental abduction of children • States have enacted criminal parental kidnapping statutes, including Florida • PKPA lets FBI and other federal law enforcement agencies to get involved only if parental kidnapping is a felony under state law

24. Florida’s Parental Kidnapping Law, Fla. Stat. § 787.03   • Crime of “interference with custody” • Third-degree felony • Defenses • Abduction necessary to protect child from “danger to his or her welfare.” • Defendant was the victim of an act of domestic violence or had reasonable cause to believe that his or her action was necessary to protect himself or herself from an act of domestic violence

25. Civil Actions for Parental Kidnapping or Tortious Interference with Custody • Many states recognize a tort action for interference with custody or visitation • Florida did so Stone v Wall, 734 So. 2d 1038 (Fla 1999), which was not technically parental kidnapping because the abductors were the child’s maternal grandmother and aunt who kept the child from the father after the custodial mother’s death