Lives can change unexpectedly, even after a lengthy and bitter divorce proceeding. One of the most troubling issues is created when one of the ex-spouses moves to a foreign country. Such an occurrence creates significant difficulties for both ex-spouses with respect to child custody and visitation. Can the existing schedule be modified? Which court has jurisdiction over the children and their spouses? Which state law applies? In 1997, the United States Department of Justice promulgated a suggested state law that attempts to remedy these problems. The law is called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
The basics of the UCCJEA
As may be imagined, the decision by one ex-spouse to move to another country creates complicated legal issues about how a motion to modify an existing order for child custody can be changed. The UCCJEA is not a substantive statute. It contains no rules or standards for resolving custody disputes; instead, it prescribes which state courts should have jurisdiction over disputes between the ex-spouses about custody and visitation issues. And the statute does not apply to child support issues.
The predecessor to the UCCJEA created four categories of jurisdictional grounds, listed here in order of priority:
- The Home State, where the child resided for at least 6 months
- A significant connection for states with which the child has a significant connection
- Emergency jurisdiction, for situations that require immediate protective action
- Vacuum jurisdiction for cases in which no other basis of jurisdiction exists
The higher a state’s position in this list, the more likely that this state possesses jurisdiction over the child and the custody dispute. A court may decline jurisdiction if it would be inconvenient for one or both parties to attend hearings and other proceedings or if one of the parties has engaged in unconscionable conduct.
The UCCJEA contains many exceptions and other provisions that necessitate the assistance of an experienced family lawyer. Anyone who foresees a custody battle across state lines or international border would do well to consult an attorney who is experienced in these matters.