The UCCJEA in Virginia Custody Cases

Parties in custody or visitation disputes often find themselves in two separate states. In almost all interstate custody cases, the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) will dictate which state has jurisdiction to rule on any custody or visitation issues between the parties.

The UCCJEA is an act that has been adopted by 49 out of the 50 states, including Virginia, as an attempt to provide consistency between the states and prevent parents from moving to a certain state for a preferential outcome.

The UCCJEA provides which state will have jurisdiction for both an initial custody determination and a modification of a prior custody order.

UCCJEA Jurisdiction for an Initial Custody Order

The UCCJEA provides the following order of priority for determining which state has jurisdiction to make an initial custody determination:

  1. Jurisdiction will be in the state (a) which is the “home state” of the child, or (b) was the child’s home state within six months immediately before the commencement of child custody proceedings if the child is absent from the state, but a parent or person acting as a parent continues to live in the state;
  2. If no state has jurisdiction under 1 above, then jurisdiction will be in the state where the child and at least one parent have a significant connection with the state (other than mere presence), and substantial evidence concerning the custody determination is available in the state; and
  3. If no state has jurisdiction under 1 or 2 above, then jurisdiction will be in any state having an appropriate connection with the child.

Home State Jurisdiction

What exactly is the “home state” of a child? The UCCJEA defines the term as the state in which the child lived with a parent for at least six consecutive months immediately before the commencement of the custody proceeding. If the child is less than six months old, the home state will be the state in which the child was born and lived from birth. If, at the time the petition was filed, a child has been out of a state for longer than six months, that state will no longer have jurisdiction to determine custody or visitation.

Example. Take the hypothetical family of John and Suzy Doe, and their one-year-old son Joe Doe, who was born and raised in Virginia. John and Suzy separate and John moves from Virginia to Texas with Joe. John would not be able to file for custody in Texas until Joe has resided in Texas for at least six months. If Suzy files for custody in Virginia before six months have elapsed, Texas will not be able to hear the matter. In other words, for the first six months after John moves with Joe to Texas, Virginia will remain Joe’s home state under the UCCJEA.

What about other countries? Can another country be a home “state” for purposes of the UCCJEA? The short answer is yes, it can. For more information, see Can Other Countries Be Home States Under the UCCJEA?

When the Home State Might Transfer Jurisdiction

A state having jurisdiction under 1 or 2 above may decline to exercise its jurisdiction, and transfer it to another state, in these limited circumstances:

  1. Inconvenient forum. In cases where the home state is is an “inconvenient forum” and some other state is better equipped to decide custody, the UCCJEA allows that other state to exercise jurisdiction. In order to determine whether the home state would be an inconvenient forum, the home state court is to analyze specific factors. These factors include location of the evidence and witnesses, any acts of domestic violence, financial situation of the parties, and familiarity of the court with the pending matter. If, after looking at the factors, the home state court determines that another state would be more convenient, then it must decline jurisdiction and allow that other state to take on the case.
  2. Emergency jurisdiction. In situations where a child (or the child’s sibling or parent) has been abandoned, abused or threatened with harm, a court may exercise temporary emergency jurisdiction even if it is not the child’s home state. However, any order issued by a court exercising jurisdiction under this exception will be temporary in nature as its purpose is to provide immediate protection of the petitioner.
  3. Unjustifiable conduct. This exception applies to cases where one party has engaged in unjustifiable conduct in order to improperly obtain home state jurisdiction in a certain state. Two examples of such unjustifiable conduct would be: (a) taking a child from a state without notice to the other parent and (b) withholding information about where the child is. If the home state court finds such unjustifiable conduct to have taken place, the UCCJEA requires that court to decline jurisdiction—and allows the court to also penalize the wrongdoer by ordering them to pay reasonable expenses associated with the action.

UCCJEA Jurisdiction for a Modification

In Virginia, child custody and visitation orders are modifiable where (a) there has been a material change of circumstances and (b) it is in the best interest of the children to modify custody or visitation. However, if the order was entered in another state, the Virginia court must first determine whether it even has jurisdiction to entertain a modification request under the UCCJEA.

Exclusive, Continuing Jurisdiction in the Initial State

The UCCJEA provides that once a state with initial jurisdiction has entered a custody order, that state will have exclusive, continuing jurisdiction to modify its order except in certain circumstances. No other state may modify a custody order so long as the state that issued the order has exclusive, continuing jurisdiction. This often becomes an issue when the child moves and establishes a new home state, and the non-custodial parent remains in the state that has exclusive, continuing jurisdiction. In such a scenario, a court in the child’s new home state cannot modify the original custody order unless and until (a) the original state no longer has exclusive, continuing jurisdiction or (b) the original state declines to exercise its jurisdiction on the ground that it is an “inconvenient forum” and the new state is better equipped to decide custody modification issues.

(Note that only the state that has exclusive, continuing jurisdiction can make the determination that it is an “inconvenient forum”).

However, the original court must decline to exercise its exclusive, continuing jurisdiction, and refuse to hear the request for a modification, if the jurisdiction was created or maintained by the “unjustifiable conduct” of the party bringing the modification action. While the UCCJEA does not specifically define “unjustifiable conduct,” examples may include the wrongful removal, detention or concealment of a child, or cases involving domestic violence.

When Does a State Lose Exclusive, Continuing Jurisdiction?

Under the UCCJEA, the state that issued the initial custody order will lose its exclusive, continuing jurisdiction to modify that order only when one of the following occurs: (1) the state loses “significant connection” jurisdiction or (2) the child, the child’s parents, and any person acting as the child’s parent no longer live in the state that issued the order.

Now, only the state that issued the initial custody order may make a determination that it no longer has “significant connection” jurisdiction. However, any state may determine that the child, the child’s parents, and any person acting as the child’s parent no longer live in the issuing state. While this may seem to be a fairly simple determination, where an individual lives is often the subject of huge debate, especially in cases, for example, involving active duty service members.

Conclusion

Whether your interstate custody case involves an initial custody determination or a modification of a prior custody order, be sure to speak with an experienced attorney as early in the process as possible.

For an initial custody determination, if you know or suspect that the other parent plans to leave the state with your child, it is critical that you speak with an attorney as soon as possible. Due to the strict time constraints under the UCCJEA, failure to act promptly may result in the case being heard in another state. That might require you to incur significant expenses traveling to multiple out-of-state court hearings—not to mention the fact that the other state might have custody laws that are not to your benefit.

For a modification of a prior custody order, it is no less imperative that you consult with an attorney as soon as possible. Failure to address modification jurisdiction under the UCCJEA could result in your case being heard in the wrong state, an invalid custody order being entered, or significant delays in the resolution of your case.

For more information about custody and visitation in Virginia, see our Guide to Custody in Virginia.

Our Custody Lawyers

Livesay & Myers, P.C. has a team of experienced custody lawyers across five office locations: in Fairfax, Arlington, Leesburg, Manassas and Fredericksburg. Be sure to read our client reviews, then examine the profiles of each of our attorneys to find the one who is the best fit for you.

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