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Child Custody Disputes Between Parents and Non-Parents; Do You Have Jurisdiction?

Whenever I take on a new client, the first question is whether Utah has jurisdiction over the parties and/or over the kind of legal action to be filed.

Whether the issue arises in divorce, child custody, or other family law matters, the court must have proper jurisdiction to hear and decide the case.

So what is jurisdiction? It is the right, the power, and the control that the court will have over a certain legal issue or subject. Thus there is geographical jurisdiction (where can the case be heard?), subject matter jurisdiction (which court has authority to hear and decide this particular legal issue?), personal jurisdiction (does the court have the power to make a person obey its orders?) and there are other jurisdictional questions.

What follows below is e-mail correspondence between another attorney and me discussing the issue of interstate jurisdiction conflicts in a dispute between parents and non-parents over child custody. The names and places have been changed, with permission, to protect privacy, but you may find this information helpful if you should find yourself in a similar position.

Dear Eric,

Hypothetical Question:

Mom and dad divorce in State X. Dad has physical custody and brings children to Utah to live with grandma. Dad stays for a year or so, then moves back to State X, where mom still resides. Leaves children with Auntie A. Children have been in primary care of Auntie A in State Y for 18 months or so (including the time dad was in State Y, but not exercising physical custody of the children). Both parents still live in State X. Does the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) mandate that State X retains jurisdiction? Auntie A wants to file for custody in Utah but I told her I thought the court would lack jurisdiction. Do you see any way to have jurisdiction moved to Utah?

Sincerely, _________

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Dear ____________:

I disagree with your analysis of the UCCJEA. If the kids have been living with Auntie A in Utah for a year and a half, you have grounds aplenty for jurisdiction in Utah:

Utah Code § 78B-13-201. Initial child custody jurisdiction.

(1) Except as otherwise provided in Section 78B-13-204, a court of this state has jurisdiction to make an initial child custody determination only if:
(a) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(b) a court of another state does not have jurisdiction under Subsection (1)(a), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 78B-13-207 or 78B-13-208; and
(i) the child and the child’s parents, or the child and at least one parent or a person acting as a parent have a significant connection with this state other than mere physical presence; and
(ii) substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
(c) all courts having jurisdiction under Subsection (1)(a) or (b) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 78B-13-207 or 78B-13-208; or
(d) no state would have jurisdiction under Subsection (1)(a), (b), or (c).
(2) Subsection (1) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
(3) Physical presence of, or personal jurisdiction over, a party or a child is neither necessary nor sufficient to make a child custody determination.

Utah Code §78B-13-202. Exclusive, continuing jurisdiction.

(1) Except as otherwise provided in Section 78B-13-204, a court of this state that has made a child custody determination consistent with Section 78B-13-201 or 78B-13-203 has exclusive, continuing jurisdiction over the determination until:
(a) a court of this state determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
(b) a court of this state or a court of another state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in this state.
(2) A court of this state that has exclusive, continuing jurisdiction under this section may decline to exercise its jurisdiction if the court determines that it is an inconvenient forum under Section 78B-13-207.
(3) A court of this state that has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under Section 78B-13-201.

Utah Code § 78B-13-203. Jurisdiction to modify determination.

Except as otherwise provided in Section 78B-13-204, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under Subsection 78B-13-201(1)(a) or (b) and:
(1) the court of the other state determines it no longer has exclusive, continuing jurisdiction under Section 78B-13-202 or that a court of this state would be a more convenient forum under Section 78B-13-207; or
(2) a court of this state or a court of the other state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in the other state.

78B-13-204. Temporary emergency jurisdiction.

(1) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
(2) If there is no previous child custody determination that is entitled to be enforced under this chapter, and if no child custody proceeding has been commenced in a court of a state having jurisdiction under Sections 78B-13-201 through 78B-13-203, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under Sections 78B-13-201 through 78B-13-203. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under Sections 78B-13-201 through 78B-13-203, a child custody determination made under this section becomes a final determination, if:
(a) it so provides; and
(b) this state becomes the home state of the child.
(3) If there is a previous child custody determination that is entitled to be enforced under this chapter, or a child custody proceeding has been commenced in a court of a state having jurisdiction under Sections 78B-13-201 through 78B-13-203, any order issued by a court of this state under this section shall specify in the order a period of time which the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under Sections 78B-13-201 through 78B-13-203. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires.
(4) A court of this state that has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced, or a child custody determination has been made, by a court of a state having jurisdiction under Sections 78B-13-201 through 78B-13-203, shall immediately communicate with the other court. A court of this state that is exercising jurisdiction pursuant to Sections 78B-13-201 through 78B-13-203, upon being informed that a child custody proceeding has been commenced, or a child custody determination has been made by a court of another state under a statute similar to this section shall immediately communicate with the court of that state. The purpose of the communication is to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.

Remember, State X has its own equivalent of UCCJEA § 78B-13-207 that it would have to review and determine whether and why it should exercise jurisdiction over child who have no lived in State X for 18 months. Otherwise stated, the criteria in § 78B-13-207 are what the State X court must review, not the Utah court.

Utah Code §78B-13-207. Inconvenient forum.
(1) A court of this state that has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon the court’s own motion, request of another court, or motion of a party.
(2) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate that a court of another state exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(a) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(b) the length of time the child has resided outside this state;
(c) the distance between the court in this state and the court in the state that would assume jurisdiction;
(d) the relative financial circumstances of the parties;
(e) any agreement of the parties as to which state should assume jurisdiction;
(f) the nature and location of the evidence required to resolve the pending litigation, including the testimony of the child;
(g) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(h) the familiarity of the court of each state with the facts and issues of the pending litigation.
(3) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.
(4) A court of this state may decline to exercise its jurisdiction under this chapter if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.

Utah Code § 78B-13-208. Jurisdiction declined by reason of conduct.

(pertinent parts cited below)

(1) Except as otherwise provided in Section 78B-13-204 or by other law of this state, if a court of this state has jurisdiction under this chapter because a person invoking the jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:
(a) the parents and all persons acting as parents have acquiesced in the exercise of jurisdiction;
(b) a court of the state otherwise having jurisdiction under Sections 78B-13-201 through 78B-13-203 determines that this state is a more appropriate forum under Section 78B-13-207; or
(c) no other state would have jurisdiction under Sections 78B-13-201 through 78B-13-203.
(2) If a court of this state declines to exercise its jurisdiction pursuant to Subsection (1), it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the wrongful conduct, including staying the proceeding until a child custody proceeding is commenced in a court having jurisdiction under Sections 78B-13-201 through 78B-13-203.

Eric Johnson

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Eric:

I appreciate your thoughts. The structure of the UCCJEA is somewhat confusing. Wouldn’t § 78B-13-202 give State X exclusive continuing jurisdiction because both parents still reside there? Or does that require a child and a parent still reside there?

Sincerely, _________

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Dear _______________:

No. First, State X is probably thrilled to kick this case to another jurisdiction (less work for State X). Second, Utah is the child’s home state now because the child has been here more than 6 months:

Utah Code § 78B-13-102. Definitions.
As used in this chapter:

(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.

Third, the code anticipates circumstances just like yours. Utah can easily obtain and assert jurisdiction regardless of the parents residing in State X:

Utah Code §78B-13-204. Temporary emergency jurisdiction.

(1) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.

Utah Code § 78B-13-201. Initial child custody jurisdiction.
(1) Except as otherwise provided in Section 78B-13-204, a court of this state has jurisdiction to make an initial child custody determination only if:
(a) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(b) a court of another state does not have jurisdiction under Subsection (1)(a), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 78B-13-207 or 78B-13-208; and
(i) the child and the child’s parents, or the child and at least one parent or a person acting as a parent have a significant connection with this state other than mere physical presence; and
(ii) substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships[.]

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