New Hampshire has recently taken steps to protect parents and children from cross border kidnapping by adopting the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA, drafted by the National Conference of Commissioners on Uniform State Laws (NCCUSL) in 1997, becomes effective in New Hampshire on December 1, 2010. Vermont and Massachusetts remain the only states that have not adopted the UCCJEA.
Prior to NH’s adoption of the UCCJEA, we were operating under the umbrella of its predecessor, the Uniform Child Custody Jurisdiction Act (UCCJA) which had been adopted in all 50 states. The UCCJA, which was written in 1968, contained broad and sometimes vague language that allowed for courts in different jurisdictions to interpret the statute differently. These difficulties were further complicated by the passage of the Parental Kidnapping Prevention Act (PKPA) in 1980 that tangled with the UCCJA in determining jurisdiction for initial custody disputes. Complications arose between states in determining a child’s “home state” and enforcing judgments across state lines, with PKPA and UCCJA having differing standards for determining what custody determination were to be given “full faith and credit” between states. The drafting and passage of the UCCJEA cleans up these conflicts and puts these statutes in order.
Exclusive continuing jurisdiction
Under the UCCJEA, once the “home state” of the child has been determined (home state is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding), and child custody orders have been issued, that state has “exclusive continuing jurisdiction” that is entitled to full faith and credit across the country. This prevents other jurisdictions from modifying that order in any way, unless and until the original state has relinquished jurisdiction. This is a large step forward from UCCJA, where different interpretations caused conflicting orders and simultaneous proceedings.
Best interests, jurisdiction and the substantive merits
Additionally, while the UCCJA was designed to promote “best interest of the child” over whom custody was at issue, including the “best interests” was interpreted by some courts as an summons decide the merits of custody dispute while determining jurisdiction, or even that “best interests” should override jurisdiction considerations That was not the drafter’s intention and as such, the UCCJEA eliminates the term “best interests” so that the jurisdictional issues are clearly separated from the merits of the custody dispute.
The UCCJEA also sets out a unified system of enforcement mechanisms which were lacking under old law. Under UCCJA, enforcement evolved differently among the states, with, for example, one state requiring a Motion to Enforce or a Motion for Full Faith and Credit to initiate enforcement proceedings, while another required a writ of habeas corpus or a Citation for Contempt. These differences in enforcement resulted in increased cost, decreased certainty in outcome, and long and drawn out enforcement proceedings, allowing one parent to hold on to custody far longer than they should otherwise be able to. In addition to unifying the process, the UCCJEA now provides specific remedies for enforcement including:
1) Procedure for registering a custody determination with another state to allow a party to predetermine whether a custody determination will be recognized in another state,
2) A swift habeas corpus type remedy for immediate review of custody violations or disputes to allow parents to maintain their awarded visitation or parenting time,
3) Extraordinary remedy – meaning if the enforcing court is concerned that the parent, who has physical custody of the child, will flee or harm the child, a warrant to take physical possession of the child is available, and
4) There is now a role for public authorities, such as prosecutors, in the enforcement process.
As to the role of public authorities in the enforcement of custody orders, the Prefatory Note to the UCCJEA states:
If the parties know that public authorities and law enforcement officers are available to help in securing compliance with custody determinations, the parties may be deterred from interfering with the exercise of rights established by court order. The involvement of public authorities will also prove more effective in remedying violations of custody determinations. Most parties do not have the resources to enforce a custody determination in another jurisdiction. The availability of the public authorities as an enforcement agency will help ensure that this remedy can be made available regardless of income level. In addition, the public authorities may have resources to draw on that are unavailable to the average litigant.
These changes will be welcome, both among attorneys and parents, as they now bring a level of certainty to parenting rights and responsibility determinations within New Hampshire and throughout the Country. It is unfortunate, however, that the only two states yet to adopt the UCCJEA happen to be two of the three states with which we share a border, Massachusetts and Vermont. With any luck, they will follow suit shortly.
Crusco Law Office Law Clerk Daniel McLaughlin, contributed to this post.