The UCCJEA and Interstate Jurisdiction
updated 1 March 2020
by Wes Cowell
The UCCJEA (the Uniform Child Custody Jurisdiction and Enforcement Act) resolves disputes about which state should hear a custody contest. The Illinois Constitution determines whether Illinois may assert jurisdiction over a particular custody case but, once a case is before an Illinois judge, the first question is whether it should stay here or be transferred to another state. Need advice? Call, leave your info, or schedule a consult.
Background: This history lesson is for law students — you can skip down to the UCCJEA - New and Improved for the current law if you're not boning up for an exam. Since WW II American families have become more mobile in each passing decade. For the past fifty years, it's become more common for parents to be in two states, or for one parent to take the children across state lines when the relationship (married or not) breaks down. The courts needed a rule to resolve which state should preside over the resulting interstate custody disputes.
1980 - Federal Parental Kidnapping Prevention Act
2004 UCCJEA -- New and Improved
Exception -- Temporary, Emergency Jurisdiction
Exception -- Inconvenient Forum
Exclusive, Continuing Jurisdiction
Custody Jurisdiction in Divorce
Jurisdictional Mistakes Happen . . . And They Count:
McCormick v. Robertson
1979 - UCCJA: There is no federal law about divorce and custody. The US Congress and the federal courts don't want any part of it. So, we have 50 sets of family law spread across 50 states. That can create problems when parents live in different states. "Uniform" laws are developed by the National Conference of Commissioners on Uniform State Laws. Essentially, Family Law lawyers work with the National Conference to come up with a good law that they want to see passed in each state. Once they all agree (through the National Conference) those lawyers lobby their respective state legislatures to enact that "uniform" law. Once it's passed in all states, then we have a law that is "uniform" across all states -- virtually every word, every letter, every comma, is the same in each state. A lawyer in Maine can tell you what the law in Oregon says . . . right down to the punctuation (almost).
Illinois adopted the first version of the Uniform Child Custody Jurisdiction Act in 1979.
That first version of the UCCJA attempted to resolve jurisdictional competition between states, discourage forum shopping, and protect the children's best interests. It required a two-step analysis to resolve jurisdictional disputes. First, the state court had to resolve if it was the child's "home state" (had the child lived there for at least 6 months?) and second, a few other issues; like, whether it would be in the child's best interest for Illinois to assume jurisdiction. That first version of the UCCJA had a lot of loopholes that were compounded when it was adopted by the many states in a less-than-uniform fashion. Interstate jurisdictional disputes finally had a framework for resolution, but the framework was slightly flawed and had enough variations from state-to-state that disputes over interstate custody jurisdiction persisted.
1980 - The Federal Parental Kidnapping Prevention Act: The UCCJA was soon backed up by the Federal Parental Kidnapping Prevention Act (28 U.S.C. 1738A, enacted in 1980). Thanks to the Supremacy Clause of the U.S. Consitution, the Federal PKPA preempted and nullified any conflicting parts of any state laws. It acted as a filter to make more uniform the diverse enactments of the UCCJA. That fix of strapped-together state and federal law fixed a lot of problems, but competing custody disputes initiated in separate states still popped up from time to time and it wasn't always clear which state would come out on top. Each party would have to have a lawyer in each state. Imagine it: at least FOUR lawyers arguing conflicting state laws, federal law, and the facts . . . all fighting over which pair of lawyers would get to keep the business. There HAD to be a better way.
The National Conference of Commissioners got together, again, and came up with the Uniform Child Custody Jurisdiction and Enforcement Act -- the UCCJEA (note the extra "E" in the abbreviation). The new, UCCJEA eliminated the situations where there could be more than one qualifying "home state." As of the most recent update of this article, the UCCJEA has been adopted by 49 of the 50 states (Massachusetts has been goofing around with it for years), the District of Columbia, Guam, and the U.S. Virgin Islands. Puerto Rico is still a problem -- it never adopted the UCCJA, let alone the UCCJEA. If you have an Illinois case with a jurisdictional conflict with either Massachusetts or Puerto Rico, you face the old school problems -- the local law plus the PKPA. Call me.
2004 - UCCJEA -- New and Improved: Illinois adopted the UCCJEA (750 ILCS 36/101, et. seq.) 1 January 2004. It's a new and improved UCCJA. The new UCCJEA:
resolves the conflicts between the state interpretations of the UCCJA;
resolves conflicts that existed between the UCCJA and the PKPA;
gives priority to "home state" jurisdiction;
gives the state with jurisdiction "continuing and exclusive" jurisdiction to enforce and modify custody and visitation orders;
creates new mechanisms for prosecutors and law enforcement to enforce interstate custody and visitation orders;
provides new protections for victims of domestic violence consistent with the Violence Against Women Act;
dovetails with the Hague Convention on the Civil Aspects for International Child Abduction;
But wait; there's more!! The new UCCJEA also:
requires all courts to give UCCJEA claims priority and to handle them expeditiously;
clarifies the procedures by which courts are to communicate with each other;
affords the parties the opportunity to participate in court-to-court communications;
requires that court-to-court communications be recorded so errors can be corrected; and
allows for telephonic and video depositions and testimony.
The Six-Month "Home State" Rule: The basic rule of the UCCJEA is that interstate child custody conflicts should be resolved in favor of the child's "home state." Home state is defined as:
"[T]he 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."
If a custody case (in Illinois we call it "parental responsibility") is brought in a non-home state, that non-home state court must defer jurisdiction to the home state court. Imagine Mom, Dad, and Child have all lived in Illinois for the past eight years. Mom takes Child and goes to State X for a month or so to help her ailing mother. After two months, they've still not returned and Dad is worrying. Around three months into her stay, Mom registers Child for school in State X, hires a lawyer, and files for divorce in State X. Dad lawyers up in Illinois and files appropriately. The court in State X must defer to the Illinois court on the custody issue -- the divorce may go forward in State X, but the custody determination must go back to Illinois to either 1) rule on it or 2) invoke one of the exceptions (below), decline to exercise jurisdiction, and send the issue of custody to State X.
That's a simple rule for simple situations. Life is complicated, however, so the UCCJEA allows for exceptions to the rule:
Exception -- Temporary, Emergency Jurisdiction: A state court may assert custody jurisdiction in certain circumstances even when it is not the child's Home State. The most frequently used exception is where a parent flees a state with the child to escape domestic violence. That "temporary, emergency jurisdiction," however, lasts only long enough to allow a case to be started in the home state and the problems stemming from the domestic violence to be resolved.
Gorup v. Brady, 2016 IL App (5th) 150078 is a good instructor on what to do in temporary emergency jurisdiction cases. Quinique Brady and Anthony Gorup divorced in Louisiana in 2007 with a two-year-old child. Quinique was awarded custody. Anthony moved to Litchfield, Illinois. Quinique moved a few times saying they were always "temporary relocations" and she also traveled for work a lot. When she traveled, she sometimes left the child with Anthony, in Illinois. For one remote work assignment in Texas, Quinique left the child with Anthony and was subsequently present when her boyfriend was murdered in a drug-deal-gone-bad in Texas. Quinique was beaten, spent two days in the hospital, and later explained to police that she had a sex-for-Xanax arrangement with the boyfriend. Yikes! Anthony obtained an Order of Protection in Illinois for the child, himself, and his wife (the child's step-mom). Anthony then enrolled the Louisiana divorce judgment in Illinois and sought a temporary modification of custody.
A hearing was held and seeing that Mom, herself, wasn't a threat to the child, the court denied the Order of Protection but found that it had jurisdiction to temporarily modify custody based on the enrolled Louisiana judgment. Ten months later, Quinique filed a motion to vacate the temporary custody award for lack of jurisdiction. The trial court denied her motion an eventually heard and granted (permanently) Anthony's custody modification claim. Quinique appealed, and the appellate court agreed with her. Reversing, the appellate court said:
Under section 204 of the UCCJEA, the circuit court "has temporary emergency jurisdiction if the child is present in this State and *** it is necessary in an emergency to protect the child because the child *** is subjected to or threatened with mistreatment or abuse." 750 ILCS 36/204(a) (West 2014).
¶ 23 Nevertheless, "[i]f there is a previous child-custody determination that is entitled to be enforced under this Act, *** any order issued by a court of this State under this Section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction." 750 ILCS 36/204(c) (West 2014). The court must also, "upon being informed that *** a child-custody determination has been made by[ ] a court of a state having jurisdiction ***[,] immediately communicate with the other court . . . to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order." 750 ILCS 36/204(d) (West 2014).
That's where the trial court went wrong -- instead of hearing Anthony's custody modification request, the judge should have 1) given Anthony time to get that done in Lousiana and 2) made a phone call to the Louisiana court to get things straightened out.
Exception -- Inconvenient Forum: A home state may decline to exercise jurisdiction if it determines that it is an "inconvenient forum." The UCCJEA lays out 8 factors the court must consider in deciding whether to decline jurisdiction. They are:
(1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) the length of time the child has resided outside this State;
(3) the distance between the court in this State and the court in the state that would assume jurisdiction;
(4) the relative financial circumstances of the parties;
(5) any agreement of the parties as to which state should assume jurisdiction;
(6) the nature and location of the evidence required to resolve the pending litigation, including the testimony of the child;
(7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) the familiarity of the court of each state with the facts and issues in the pending litigation.
Exception -- Unclean Hands: When the jurisdictional requirements are met but the petitioner has exercised "unjustifiable conduct," the court must decline jurisdiction unless all parties acquiesce or no other state can or will exercise jurisdiction.
Exclusive, Continuing Jurisdiction: Once a Home State court makes a custody award (called an "initial custody determination") that state retains continuing and exclusive jurisdiction of the custody issue -- even if the child moves and establishes a new Home State. Exclusive jurisdiction continues until the child and both parents move from the home state and there is no longer any substantial evidence remaining in the home state.
"Presently Reside," "Permanent Abode," and "Temporary Sojourn" -- Degree of Permanency: Imagine a case where a custody award is made in state A, Dad moves to Illinois, and Mom moves from state-to-state for work for a period of six months to a year, or so, but maintains some small sliver of a connection with State A. Which state should assert jurisdiction? Go read: Akula v. Akula, 404 Ill.App.3d 350, 935 N.E.2d 1070, 343 Ill.Dec. 842 (Ill. App., 2010)
Custody Jurisdiction in Divorce: Illinois' divorce law gives the court jurisdiction to resolve custody (parental responsibility) issues if and only if the custody claim meets the jurisdictional requirements of the UCCJEA. If a divorce case is started in Illinois, but Illinois is not the child's Home State, the court may proceed with the divorce case but should defer jurisdiction on the custody issue to the child's Home State unless the Home State declines jurisdiction. The law says (in part):
Sec. 201. Initial Child-Custody Jurisdiction.
(a) Except as otherwise provided in Section 204, a court of this State has jurisdiction to make an initial child-custody determination only if:
(1) 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;
(2) a court of another state does not have jurisdiction under paragraph (1), 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 207 or 208, and:
(A) 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
(B) substantial evidence is available in this State concerning the child's care, protection, training, and personal relationships;
(3) all courts having jurisdiction under paragraph (1) or (2) 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 207 or 208; or
(4) no court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3).
(b) Subsection (a) is the exclusive jurisdictional basis for making a child-custody determination by a court of this State.
(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody determination.
Jurisdictional Mistakes Happen . . . And They Count: The UCCJEA talks about when Illinois courts "have jurisdiction." Illinois courts, however, are empowered by Article VI, Section 9 of the Illinois Constitution to assert subject matter jurisdiction over any "justiciable issue'" (see, McCormick v. Robertson, below). If the family court mistakenly asserts UCCJEA jurisdiction over the custody issue, its findings, rulings, and orders still count and, thanks to the protections of the Illinois Constitution, they cannot later be vacated for "lack of subject matter jurisdiction." McCormick v. Roberston, 2015 IL 118230 (Ill., 2015)
The State Constitution Comes First -- McCormick v. Robertson: The case of McCormick v. Roberston (2015 IL 118230 (Ill., 2015)) is the poster child for the legal axiom that "courts jealously guard their limited jurisdiction against encroachments by the legislature." Joshua McCormick was born in Urbana, Illinois and spent his minority exclusively in Champaign County. He enlisted in the Marines and served in Okinawa, Japan, and Afghanistan. On leave, he met Alexus Robertson in Missouri. Alexus had always lived in Missouri. Their brief relationship produced a daughter, L.M., born in Missouri in April 2009. On another leave, in January 2010, Joshua filed a parentage case in Champaign, Illinois, seeking joint custody. Alexus submitted to Illinois jurisdiction by filing her pro se Appearance. A few days later, both Joshua and Alexus appeared in the Illinois court and presented to the judge a signed Joint Parenting Agreement with a visitation schedule that would begin when Joshua returned from Afghanistan.
The court accepted the proposed Joint Parenting Agreement and the final order:
found that the court had jurisdiction over the parties and the subject matter;
found that Joshua had been domiciled in Illinois for at least 90 days preceding the date of the judgment;
found that the child had been born in Missouri the year before;
held that the parties had submitted themselves to Illinois' jurisdiction;
held that the agreement would be "construed in accordance with the laws of the State of Illinois."
Joshua came back from Afghanistan in June 2012 and often visited his daughter in Missouri. He continued to visit her until Alexus packed up the child and moved to Las Vegas in November 2012. Joshua tolerated the situation for a while but, after his marriage to Andrea Mohr in July 2013 (in which his daughter served as flower girl), he went back to court to enforce his visitation rights and pressured Alexus with the threat of contempt-of-court for thwarting his regular contact with their child.
The court said it would do nothing about the visitation issue (in Southern Illinois many judges used to stay out of post-decretal visitation disputes arising in "joint custody" cases), so Joshua filed papers to modify residential custody to have his daughter come to Illinois to live with him. Alexus responded by filing papers in Nevada asserting that the original JPA entered in Illinois was "void due to lack of UCCJEA subject matter jurisdiction" and asking the Nevada court to do everything all over again, from the beginning, reach the same result (joint custody) but this time she wanted to include child support, health insurance, and dental care for their daughter. Alexus also filed papers in the Champaign court asking it to vacate the Champaign JPA for lack of UCCJEA subject matter jurisdiction.
In February 2014 -- four years after the Champaign JPA -- the Nevada judge and the Illinois judge conferred by telephone (as called for under the UCCJEA). Then, the Nevada judge entered an order finding:
strict compliance with the UCCJEA is necessary to confer subject matter jurisdiction on child custody issues;
UCCJEA requirements were not satisfied in the Champaign, January 2010 order;
the Champaign JPA was void
that Nevada was the child's home state under the UCCJEA;
that "Nevada shall handle all aspects of child custody;"
that the "parenting contract" between the parties was void;
and the Nevada court gave Joshua 20 days to file papers in Nevada, submit his financial information for child support calculations, and work with Alexus and a mediator to sort out a new visitation schedule.
The Illinois judge agreed and entered an order abdicating Illinois jurisdiction, vacating the JPA, and dismissing Joshua's initial parentage / custody petition "with prejudice" (meaning he couldn't re-file in Illinois). Here was their reasoning: The UCCJEA confers jurisdiction in Section 201, which says (along with my comments):
Sec. 201. Initial Child-Custody Jurisdiction.
(a) Except as otherwise provided in Section 204 (that's for temporary, emergency jurisdiction for victims fleeing domestic violence and abandoned children), a court of this State has jurisdiction to make an initial child-custody determination only if:
(1) this State is the home state of the child on the date of the commencement of the proceeding (Missouri was the home state, Illinois was not, but nobody filed papers in Missouri) or was the home state of the child within six months before the commencement of the proceeding (Joshua visited his daughter in Missouri; she never set foot in Illinois) and the child is absent from this State but a parent or person acting as a parent continues to live in this State;
(2) a court of another state does not have jurisdiction under paragraph (1) (Missouri WOULD HAVE had jurisdiction under (1) if Alexus had bothered to file papers in Missouri), or a court of the home state of the child has declined to exercise jurisdiction (since there wasn't a case in Missouri, there wasn't anyone to ask) on the ground that this State is the more appropriate forum under Section 207 or 208, and:
(A) 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 (this wasn't true); and
(B) substantial evidence is available in this State concerning the child's care, protection, training, and personal relationships (this also wasn't true);
(3) all courts having jurisdiction under paragraph (1) or (2) (Missouri was the only court the could have had jurisdiction under paragraphs (1) and (2)) 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 207 or 208 (Missouri didn't even have a case in which it could decline jurisdiction); or
(4) no court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3) (Missouri would have had jurisdiction).
(b) Subsection (a) is the exclusive jurisdictional basis for making a child-custody determination by a court of this State.
So, the judges seemed to have gotten it right under the UCCJEA -- Missouri had been the Home State and therefore was the only State able to exercise jurisdiction on the subject of custody when Illinois entered its custody order. Joshua shouldn't have started his case in Illinois, Alexus shouldn't have gone along with it, and the Illinois judge never should have accepted the case. Everything should have been done in Missouri.
Joshua appealed. The Appellate Court said the trial court got it right when it asserted jurisdiction over the case . . . but got it wrong when it abdicated subject matter jurisdiction. According to the Appellate Court, Joshua's case was, in fact, properly filed in Illinois. The hinge pin in their analysis was Article VI, Section 9, of the Illinois Constitution (Ill. Const. 1970, art. VI, sec. 9) which grants the circuit (county) courts "original jurisdiction of all justiciable matters except when the Supreme Court has original and exclusive jurisdiction." The Appellate Court said Joshua presented a justiciable issue in the parentage part of his case and vacated the trial court's order . . . meaning the Champaign JPA was still valid.
When Alexus learned the Illinois Appellate Court had sided with Joshua and the Champaign JPA was still valid, she appealed to the Illinois Supreme Court. The Supremes, however, agreed with the Appellate court. For starters, the UCCJEA deals with custody claims -- not parentage claims. So, Joshua's initial petition where he sought to be declared the father didn't even fall under the UCCJEA. There was no reason for the trial court to dismiss his claim to parentage.
The Supreme Court said that trial courts have subject matter jurisdiction of all "justiciable issues" under Illinois' Constitution and the UCCJEA language about jurisdiction simply defines a "procedural limit." Jurisdiction flows only from the powers granted by the Illinois Constitution and the legislature can't take that away. The Supremes said:
[S]ection 201 does speak in terms of "jurisdiction" when describing the conditions which must be met before an Illinois court will consider and decide the question of initial child custody. As used in the statute, however, "jurisdiction" must be understood as simply a procedural limit on when the court may hear initial custody matters, not a precondition to the exercise of the court's inherent authority. It could not be more, for as we have held, that authority emanates solely from article VI, section 9, of our constitution (Ill. Const. 1970, art. VI, § 9). See In re Luis R., 239 Ill. 2d at 304; Siegel v. Siegel, 84 Ill. 2d 212, 221 (1981).
McCormick v. Roberston, 2015 IL 118230 (Ill., 2015)
So, in section 201 where the UCCJEA says "a court of this State has jurisdiction to make an initial child-custody determination only if . . . ." it doesn't really mean what it says. It really means that once the circuit court asserts jurisdiction over a justiciable issue, it then must determine if it should continue to handle the case or, applying the UCCJEA, tell the parties that "Illinois is not the Home State, please take your case to Missouri."
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> Factors Determining "Best Interests"
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