|Fern L. Frolin is the family law legislation co-chair on the Family Law Section Council. She is also the Family Law Section Council delegate to the House of Delegates.
The history: MCCJA and its problems
Prior to 1968, state courts throughout the United States could exercise subject matter jurisdiction in a child custody case1 based on the physical in-state presence of the child. Because the United States Supreme Court had never ruled that states must grant full faith and credit to the custody determinations of sister states, many states freely modified other states' custody determinations. This legal climate advantaged the parent in actual possession of the child. It encouraged forum shopping and child abduction. To remedy these problems, the National Conference on Uniform State Laws ("the Uniform Laws Conference")2 in 1968 promulgated the Uniform Child Custody Jurisdiction Act ("UCCJA").3 The general purpose of the UccJA was to "avoid jurisdictional competition and conflict with courts of other states in matters of child custody…."4
The UCCJA established four jurisdictional grounds:
• Home state, defined as the state in which a child has lawfully resided for at least six months preceding commencement of the action;
• Significant connection, which occurs when the child's connections with the state provide substantial evidence about the child;
• Emergency, which is a condition that requires immediate action, such as abandonment or abuse; and
• Vacuum, which applies when no other state has a basis for jurisdiction.
The UCCJA did not eliminate the possibility of two or more states having concurrent jurisdiction, for example through home state and significant connection jurisdiction. States passed different versions of the UCCJA and some states permitted emergency jurisdiction as a basis for entering permanent orders.5
Massachusetts passed its version of the UCCJA, the Massachusetts Child Custody Jurisdiction Act (MCCJA),6 in 1983. The MCCJA is a pure version of the UCCJA. It provides a child's home state with exclusive jurisdiction to initiate or modify a child custody order.7 There were excellent reasons for exclusive home state jurisdiction, particularly connections of the custodial parent and access to information concerning the child's welfare.8
Exclusive home state jurisdiction to modify a child custody order required that a state that had issued a custodial order or parenting plan relinquish jurisdiction to modify its own order six months after a child moved. But home state jurisdiction simply did not work as envisioned. Except for Massachusetts, all states that enacted the UCCJA either modified exclusive "home state" jurisdiction in order to permit their courts continuing jurisdiction to modify their own orders after the child moved or adopted continuing jurisdiction from other state statutes.9 The differing state-to-state versions of the UCCJA frustrated the purpose of avoiding jurisdictional conflict because of the lack of exclusivity.
Other jurisdiction conflicts arose. Congress enacted the Parental Kidnapping Prevention Act (PKPA),10 to close some of the remaining gaps in child custody jurisdiction. The PKPA preempts some applications of the MCCJA. In particular, the PKPA rules allow only one state to assert jurisdiction at a time.11 Thus, for example, Florida's adjudication that it had continuing jurisdiction in a Massachusetts/Florida child custody dispute vested the Florida court with exclusive jurisdiction under the PKPA, even though Massachusetts was the child's home state.12
In 1994, the federal government enacted the Full Faith and Credit for Child Support Orders Act.13 Section (a)(2) of that statute requires each state to adopt the provisions of the act without modification. Section (d) requires that states maintain continuing exclusive jurisdiction over their own child support orders, provided that one contestant or the child remains in the state. In compliance with the Congress' mandate of full faith and credit for child support orders, Massachusetts duly adopted the Uniform Interstate Family Support Act (UIFSA) the following year.14 As congress required, UIFSA grants continuing exclusive jurisdiction to the state that issued the original support order, provided that one party to the order remains in the issuing state.15 With MCCJA governing interstate child custody jurisdiction and UIFSA controlling interstate child support jurisdiction, Massachusetts has an inconsistent statutory scheme for parent and child jurisdiction after one of the parents relocates with the child. MCCJA cedes jurisdiction for custody matters, but UIFSA retains continuing jurisdiction for support issues. Parents who leave the state after obtaining custody and support orders in Massachusetts can easily find themselves litigating in two states at the same time.
Aside from the interstate conflicts issue, the MCCJA has created problems of fairness and efficiency in cases of requests to relocate children. Under MCCJA, when the custodial parent asks to move out of state with a minor child,16 the remaining in-state parent faces loss of access to the Massachusetts courts as an inescapable consequence of the move. This causes noncustodial parents to protest relocation requests where the noncustodial parent might otherwise consent. The result is increased litigation. MCCJA also precludes choice of forum by agreement.17 Consequently courts and counsel cannot use retained jurisdiction to facilitate settlements. Instead, many cases are now settled by allowing the custodial parent and child to move on a temporary basis only. A relocation case may remain open for years for the sole purpose of retaining jurisdiction.
The UCCJEA: A vast improvement
The Uniform Laws Conference recognized that the UCCJA was not working. In a Juvenile Justice Bulletin of the U.S. Department of Justice Bulletin, Patricia M. Hoff18 of the ABA Center on Children and the Law observed :
[Under UCCJA] [c]ustody contestants have sometimes exploited jurisdictional ambiguities to draw out litigation, secure conflicting custody orders, and delay (or deny) enforcement of valid custody and visitation orders. In these instances, resources that could have been used to help children were instead spent on multistate litigation.19
To remedy the flaws in the UCCJA, the Uniform laws Conference in 1997 approved the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a complete replacement of the UCCJA. UCCJEA contains jurisdictional rules that essentially bring the UCCJA into conformity with the PKPA and UIFSA. The central feature of the UCCJEA's jurisdictional rules, like UIFSA, is exclusive continuing jurisdiction in relocation cases, provided that the child, a parent or person acting as a parent remains in the original state.20 Additionally, the UCCJEA authorizes courts to exercise emergency jurisdiction in cases involving family abuse.21 This provision expands emergency jurisdiction under the MCCJA, which is limited to abuse or abandonment of the child.22 The UCCJEA adds enforcement provisions authorizing law enforcement agencies to implement custodial orders.23 It includes new inconvenient forum provisions with express criteria to promote flexibility in the best interest of the child.24 UCCJEA specifically directs courts to decline jurisdiction created by unjustifiable conduct.25
The result is a vastly improved statute, the main feature of which is continuing exclusive jurisdiction for an issuing state's custody and child access orders. As of April 22, 2004, 34 states and the District of Columbia have passed the UCCJEA. Four additional state legislatures have sent the statute to governors for signature.26
Massachusetts UCCJEA: Protections and safeguards
In 2001, the Massachusetts Bar Association's Family Law Legislation Practice Group began debating the UCCJEA. The committee included an array of members of the MBA Family Law Section, including several legal services counsel and lawyers who frequently represent victims of domestic violence. The area of most concern to the committee was the advisability of replacing home state jurisdiction with continuing issuing state jurisdiction. Advocates for domestic violence victims raised real apprehension that victims who have been forced to flee the state for safety reasons should not be brought back to defend against repeated child custody litigation. The committee needed to draft a statute that would provide uniformity with other states and PKPA, align the principles child support and child custody jurisdiction, protect victims from litigation harassment and permit flexibility to accept or decline continuing jurisdiction based on a fact sensitive analysis.
After nearly a year of debate, the committee reached several compromises. It ultimately revised the UCCJEA by incorporating multiple provisions for protection of domestic violence victims. This version was supported by the MBA House of Delegates and has since been endorsed by the Massachusetts Council on Family Mediation and the Massachusetts Chapter of the American Academy of Matrimonial Lawyers.
The proposed Massachusetts version provides that Massachusetts has continuing exclusive jurisdiction over its orders until:
• The child no longer has a significant connection with the state and substantial evidence is no longer available in the state; or
• Neither the child nor a parent, nor any person acting as a parent resides in the state; or
• The court finds that a parent or person acting as a parent has engaged in a serious incident or pattern of abuse against the other parent or person acting as a parent or the child.27
A finding of a serious incident or a pattern of abuse requires the court to decline continuing jurisdiction unless otherwise agreed in writing by the victim.28 The standard of "serious incident of abuse or pattern of abuse" parallels the existing Massachusetts child custody statute for cases involving abuse of a parent or child.29 Thus, the proposed Massachusetts version of the UCCJEA would be part of a consistent statutory scheme that protects children and victims from domestic abusive parents. It will be more protective of victims of domestic violence than any other enacted version of UCCJEA.
The proposed Massachusetts version of the UCCJEA also vests the court with discretion to decline jurisdiction for a myriad of reasons. It instructs the court to consider litigants' disparate resources, any history of domestic violence in the family and other factors for the protection of the child and the parties in determining whether to exercise or decline jurisdiction.30 To ease the burdens of interstate litigation, the UCCJEA permits courts to order an out-of-state custody evaluation31 and to assess travel and other necessary and reasonable expenses against a party.32 These protections are not currently available under the MCCJA. As drafted by the committee, adopted by the MBA and filed on behalf of the association, the proposed Massachusetts version of the UCCJEA will protect all classes of litigants, including domestic violence victims and financially disadvantaged parents.
The UCCJEA was filed on behalf of the MBA by Joint Judiciary Committee co-chairs Sen. Robert Creedon and Rep. Eugene O'Flaherty. Early this spring the bill received a favorable report of the Judiciary Committee.
1. As used in this article and in the relevant statutes referenced, a "child custody" case includes judgments, orders, decrees for custody, visitation and allocation of parenting time. [back]
2. Founded in 1892, The Uniform Laws Conference is a confederation of state commissioners on uniform laws. It is comprised of more than 300 attorneys, judges and law professors, who are appointed by each of the 50 states , the District of Columbia, Puerto Rico and the Virgin Islands. Its members draft uniform and model state statutes and work toward their enactment.[back]
3. Hoff, P.M. 2001. The Uniform Child-Custody Jurisdiction and Enforcement Act. Office of Juvenile Justice and Delinquency Prevention Bulletin. U.S. Department of Justice.[back]
4. Massachusetts Child Custody Jurisdiction Act, 1983 Mass. Acts ch. 680 ß2 (a) (1).[back]
5. Hoff, supra note 3.[back]
6. Mass .Gen. Laws ch. 209B[back]
7. Mass. Gen. Laws ch. 209B, ßß1, 2.[back]
8. Massachusetts Child Custody Jurisdiction Act, 1983 Mass. Acts. Ch. 680, ß3.[back]
9. See e.g., Delk v. Gonzalez, 421 Mass. 525, 534 (1995). Delk was a child custody jurisdiction dispute between the trial courts of Massachusetts and Virginia. Virginia, like Massachusetts, had a pure version of UCCJA that provided jurisdiction to modify only to the child's home state. After the mother and child moved to Massachusetts, the mother, a victim of abuse by the father, sought modification of a Virginia custody decree. Lacking jurisdiction under its UCCJA, the Virginia trial court ruled that it had continuing jurisdiction under a 1919 statute, Va. Code ß20-108. The Supreme Judicial Court required the Massachusetts courts to cede jurisdiction to Virginia, even though Massachusetts had jurisdiction and the Virginia court may have erred.[back]
10. 28 U.S.C.A. ß 1738, et seq.[back]
11. Delk, 421 Mass. at 531, n.5.[back]
12. Fortier v. Rogers, 44 Mass. App. Ct. 732 (1998).[back]
13. 28 U.S.C. ß 1738B.[back]
14. Mass. Gen. Laws ch. 209D.[back]
15. Mass. Gen. Laws ch. 209D, ß2-205.[back]
16. In most circumstances, a moving custodial parent needs permission of the other parent or the court in order to relocate the child. Mass. Gen. Laws ch. 208, ß30.[back]
17. MacDougall v. Acres, 427 Mass. 363, 371 (1998).[back]
18. Hoff works as the legal director of a project of the ABA Center on Children and the Law. She served as an advisor to the UCCJEA drafting committee.[back]
19. Hoff, supra note 3.[back]
20. UCCJEA, ß 202 (Exclusive Continuing Jurisdiction).[back]
21. UCCJEA, ß 204.[back]
22. Mass. Gen. Laws ch. 209B, ß 2(a)(3).[back]
23. UCCJEA, ß 311 (warrant to take physical custody of children); ßß 315-317 (roles of law enforcement personnel).[back]
24. UCCJEA, ß 207 (inconvenient forum).[back]
25. UCCJEA, ß 208.[back]
26. UCCJEA has been endorsed by the American Bar Association, the National Center for Missing and Exploited Children, the Polly Klass Foundation and the American Academy of Matrimonial Lawyers.[back]
27. Senate 969, ß 202.[back]
28. Senate 969, ß 202.[back]
29. Mass .Gen. Laws ch. 208, ß31A. Section 31A defines a serious incident of abuse as one involving bodily injury or actions causing another to fear imminent bodily injury or causing another to engage in involuntary sexual relations by force, threat or duress. Neither the proposed Massachusetts version of UCCJEA nor Section 31A defines a pattern of abuse. [back]
30. Senate 969, ß 207.[back]
31. Senate 959, ß 112 (a) (3).[back]
32. UCCJEA, ß 208(c). Recoverable costs include counsel fees, communication expenses, investigative fees, and travel and childcare expenses.[back]