MULTI-JURISDICTIONAL ISSUES IN CHILD CUSTODY: MISSISSIPPI AND THE UCCJEA

By: Billie Jo White, White Law Firm, Starkville

What is the UCCJEA?

The UCCJEA is the Uniform Child Custody Jurisdiction and Enforcement Act promulgated by the Uniform Law Commissioners in 1997. The UCCJEA revised the UCCJA, Uniform Child Custody Jurisdiction Act of 1968, which had been adopted by all 50 states prior to the introduction of the UCCJEA. The Mississippi legislature enacted the UCCJEA, effective July 1, 2004, codified in Miss Code Ann. §§ 93-27-101 through 93-27-402. Currently, 46 states, the District of Columbia and the U.S. Virgin Islands have adopted the Act, with the Missouri legislature currently considering adoption. 

The UCCJEA is designed to reduce forum shopping by non-custodial parents who would attempt to seek a sympathetic court willing to change an initial custody order and to provide guidelines to establish an initial forum for child custody determination. The Act provides a scheme whereby conflicting custody orders are discouraged by and through (1) requirements for the exercising of original jurisdiction and (2) a procedure for the relinquishing and accepting of jurisdiction by states that otherwise might have conflicting or concurrent jurisdiction.  Further, the Act adds an enforcement provision similar to those in the UIFSA (Uniforms Interstate Family Support Act) that was not a part of the UCCJA.  

What other Acts do I need to consider along with the UCCJEA?

The UCCJEA does not address multi-state enforcement of child support orders. The UIFSA governs child support enforcement, as mandated by federal law for adoption by all states and is indeed the current law of all states, codified under Miss. Code Ann. §§ 93-25-1 through 93-25-177. The PKPA (Parental Kidnaping Prevention Act) was passed by the U.S. Congress in 1981 to provide additional muscle for multi-jurisdictional enforcement of child custody orders.  Previously, these Orders were only enforced through state courts’ interpretations of the Full Faith and Credit Clause of the Constitution of the United States, which resulted in varied and inconsistent holdings from state to state.

The UCCJEA, as a practical matter, must be considered in conjunction with the UIFSA and the PKPA. Detailed discussion of these two other Acts will not be addressed in this article. It is important to mention that while these three Acts tend to co-mingle and work together in large part, some conflicts and differences may confuse adjudication of issues in custody cases. However, if Mississippi family lawyers remember that when differences arise, the PKPA will control under the doctrine of federal preemption and UIFSA shall govern in regard to child support, the confusion should remain minimal. (It is possible for one state to have jurisdiction over enforcement of the child support order while another state has jurisdiction over enforcement of the custody and visitation order).

Major Provisions/Categories in the UCCJEA:

·Initial Custody Determinations – Home State of the Child

The Act grants priority to the home state of the child or to the parent who is left behind in the home state, if action is filed within six months. If there is no “home state,” no parent left behind, or a declination of jurisdiction, then the entertaining court can exercise jurisdiction through several other avenues. Absent a “home state,” as detailed above, the child’s (and/ or parent’s or party’s) significant connections to the state can cause jurisdiction to attach, providing substantial evidence is available for adjudication on the merits. Any state meeting the requirements of “home state” or significant connection can make a determination that there is a more appropriate forum for the action. If no court has jurisdiction under the above three avenues, then a court may accept jurisdiction if it has an appropriate connection to the child. Further, jurisdiction may be established in the temporary in emergency cases such as abandonment or abuse.  

·Modifications of Custody –  Exclusive Continuing Jurisdiction

Once jurisdiction over the child is established under the Act, that jurisdiction is exclusive to that court and continues in that court indefinitely unless or until certain requirements are met. Those requirements are as follows: a determination by a qualified court of the entertaining state that both parents (all parties) and the child have moved away from the state and no longer have significant connections to the state; or the originating court determines that the child and one parent have moved away and substantial connections and evidence regarding the child are no longer available in the state (something akin to a forum non-conveniens analysis). Keep in mind that the determination must be done (at least in the case where one parent/party remains) by the Court having original jurisdiction.

·Temporary Emergency Jurisdiction

Of course, there are provisions for temporary emergency jurisdiction. “The child's presence and its abandonment, mistreatment or abuse still trigger the taking of emergency jurisdiction, but threats to siblings or a parent also can trigger the taking of emergency jurisdiction. Because of the priority given to the home state of the child, the home state will most often be the state from which continuing jurisdiction is exercised.”[1]

·Enforcement Provisions

The enforcement provisions are intended to provide additional and quicker remedies for contempt of custody orders. The end result ideally is that there is less “snatch and grab” of children. These provisions allow for the streamlining of entries of existing orders in the forum state, applying for the issuance of a warrant by the state of the present valid order, noticing a next day hearing requiring physical production of the child, and giving of authority to public figures, like prosecutors and law enforcement, the power of enforcement. (These provisions provide more “teeth” than your traditional summons to a hearing on a “Contempt” petition. In some courts, even if there is a repeat contempt offender, jail time may not be ordered and the child may not be required to be produced under threat of arrest). 

Conclusion: the Changing Nature of Custody

As any family lawyer knows too well, no custody order is ever truly final. Unlike other “Final Judgments,” final orders of custody can always be modified when the circumstances warrant.  Further, even a petition to modify a custody order that falls short of proving the elusive black-cloud standard of “material adverse change” will be at least partially heard by the chancellor as long as “material adverse change” is adequately plead. 

The end result is that in this highly mobile world we live in, many changes and circumstances arise causing co-parents to live in places far from one another. Obviously, it can become quite inconvenient for one parent to seek a modification in the order-issuing court due to distance. Too often in these circumstances, unlawful avenues for redress are sought. As in many cases in the past, (and now, as some chancellors and judges have yet to embrace and understand the “new” law) clients come to their attorney with problems of custody orders pending or initiated in various other states. The answers for reconciliation had been unclear and the solutions muddled and misinterpreted.    

Now, the UCCJEA establishes rules for the origination, maintenance and changing of jurisdiction for the purposes of custody determinations and modifications. This is accomplished by requiring that only one state, at any point in time, be allowed to have subject matter jurisdiction and thereby only one court shall have the authority to make and modify custody determinations. The intended result is a lack of competing orders. Further, the establishment of singular state jurisdiction results in the orders of any and all other states (having adopted the UCCJEA) being void for lack subject matter jurisdiction. 

The good news for family lawyers is, of course, that a void judgment “may be attacked directly or collaterally, anywhere and at any time.”[2] Considering personal time restraints, client delays in providing timely information and the normally high volume of clients managed by many family law practitioners, the UCCJEA can be a powerful tool. Further, the UCCJEA provides a more clear and concise framework to attack collateral, unlawful orders of sister states negatively affecting our clients and their children.



[1]Uniform Child Custody Jurisdiction and Enforcement Act, “Summary.”  Uniform Law Commissioners, 2002.  Chicago, Illinois.  http://www.nccusl.org/update/uniformact/summaries/uniformacts-s-uccjea.asp

[2]Duvall v. Duvall, 224 Miss. 546, 80 So.2d 752, 755 (Miss. 1955).