Jurisdiction is defined as the geographic area over which authority extends. In this case jurisdiction refers to a court’s authority to hear and determine causes of action. When you hear that a particular court maintains jurisdiction, it means that a court retains the right to the settlement of issues until or unless it relinquishes that right to another court, who would then be the court of competent jurisdiction.
Jurisdiction in divorce matters
- This refers to where they live, as opposed to their residences, because people can have more than one residence.
- All petitions for divorce are handled by State courts.
- A state in which either spouse is domiciled has jurisdiction through its courts to terminate the marriage by granting a divorce. States impose a residency (domicile) requirement on at least one party to a divorce, requiring continuous residency in order to ensure that a person is not a non-resident.
- Jurisdiction can be tricky. For example, if a couple was married in New York, one partner must have lived there (established residency) for one year before filing for divorce. Another couple, married in another State and then moved to New York, must establish residency for two years before they may divorce in the State.
- In order to divide the marital property of a couple, the State and its courts must have jurisdiction over the individuals. Legal experts call this subject matter jurisdiction.
- There can be more than one potential jurisdiction. When a couple splits and each lives in another State, the person who files first will generally establish jurisdiction as long as residency has been met. Parties can and do challenge jurisdiction and wars are fought over this issue. Divorce can still proceed as long as the court has jurisdiction over the plaintiff.
- Once a valid divorce is obtained in one State’s court, it is valid in all States.
- Jurisdiction can be used strategically. A spouse wishes to divorce and use mental cruelty as grounds. The state they live in does not allow mental cruelty as a ground for divorce. The spouse can separate from the other spouse, move to a State that permits the use of mental cruelty, and after establishing residency, can sue for divorce on that basis. It isn’t relevant where the cause of action took place.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is an Act passed by Congress in 1997 addressing the inconsistencies of case law across all 50 States. It revises the law on child custody jurisdiction and provides for a remedial process to enforce interstate child custody and visitation determinations. The UCCJEA replaced the Uniform Child Custody Jurisdiction Act (UCCJA) which was adopted by all 50 States nearly 3 decades prior; a law that had many interpretations and significant inconsistencies from one State to another.
The UCCJEA also sought to address the interstate custody jurisdictional problems that continued to exist after the adoption of the UCCJA and the Parental Kidnapping Prevention Act (PKPA) of 1980. The PKPA was intended to patch the holes created by the UCCJA and address the interstate custody jurisdictional problems that continued to exist after the adoption of the UCCJA.
- The UCCJEA prioritizes home state jurisdiction – The PKPA had muddied the waters requiring that full faith and credit cannot be given to a child custody determination by a State that exercises initial jurisdiction as a “significant connection state” when there is a home State. The UCCJEA fixed that.
- Clarification of emergency jurisdiction – emergency jurisdiction provisions by the UCCJA predated the widespread enactment of state domestic violence statutes, and the UCCJEA creates uniformity across the States. For your States jurisdictional laws, Review Your State Laws.
- Exclusive continuing jurisdiction for the State that entered the decree – States had been all over the map on their interpretation of how long continuing jurisdiction should last or how long modification jurisdiction should last (see below).
- Specification of what custody proceedings are covered – the definition of what constituted a custody proceeding varied among the states. There was no general consensus on whether the UCCJA applied to protection from domestic violence, termination of parental rights, abuse, neglect, dependency, guardianship and wardship proceedings. The UCCJEA ended this confusion by defining a custody determination, with the exception of adoption, as virtually all cases that can involve custody of or visitation with a child (see below).
- The Role of Best Interests in proceedings – The UCCJEA eliminated the term in order to distinguish between the jurisdictional standards and the substantive standards relating to custody and visitation of children (see below).
Uniformity across the States
A court has jurisdiction to make an initial child-custody determination only if:
- The 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 182 days before the commencement of the proceeding and the child is absent from the state but a parent or person acting as a parent continues to live in the state.
- A court of another state does not have jurisdiction under a provision of law adopted by that state that is in substantial conformity with the law, or a court of the home state of the child has declined to exercise jurisdiction on the ground that a particular state is the more appropriate forum under a provision of law adopted by that state.
- All courts having jurisdiction under a provision of law adopted by that state have declined to exercise jurisdiction on the ground that a court of of a particular state is the more appropriate forum to determine the custody of the child under a provision of law adopted by that state.
- No court of any other state would have jurisdiction under the criteria specified in a provision of law adopted by that state.
The home state is the state where the child most recently lived for 6 months or more. If a child is under 6 months of age, the home state is where the child was born. A parent can file for custody in the state where the child lived last if it has been less than 6 months since the child was removed. Exceptions to the home state rule can be when a parent files for custody in a state where the child and a parent have significant connections. Significant connections are between the child, the child’s parents or the child and a person acting as a parent. Significant connections can include family members, friends, a prior school or any meaningful link by the child to another State.
A State has exclusive jurisdiction to make an initial child custody determination only if:
- The 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 6 months before the commencement of the proceeding and the child is absent from the State but a parent or person acting as a parent continues to live in the State.
- A court of another state does not have jurisdiction, 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.
- 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.
- Substantial evidence is available in this State concerning the child’s care, protection, training, and personal relationships.
All courts having jurisdiction 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; or no court of any other state would have jurisdiction.
The court of 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 and:
- The court of the other State determines it no longer has exclusive, continuing jurisdiction or that a court of one State would be a more convenient forum
- A court of one State or a court of the other State determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other State
A court has temporary emergency jurisdiction if the child is present in the 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. If there is no previous child-custody determination that is entitled to be enforced under this article and a child-custody proceeding has not been commenced in a court of a state having jurisdiction under a provision of law adopted by that state 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 a provision of law adopted by that state.
Before a child-custody determination is made, notice and an opportunity to be heard must be given to all persons entitled to notice under the law of this State as in child-custody proceedings between residents of this State, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.
A court of a State may not exercise its jurisdiction if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another State having jurisdiction unless the proceeding has been terminated or is stayed by the court of the other State because a court of this State is a more convenient forum.
A court of a State which has jurisdiction 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 motion of a party, the court’s own motion, or request of another court.
If a court of a State has jurisdiction because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:
- The parents and all persons acting as parents have acquiesced in the exercise of jurisdiction
- A court of the State otherwise having jurisdiction determines that this State is a more appropriate forum
- No court of any other State would have jurisdiction
Each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child’s present address or whereabouts the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit must state whether the party:
- Has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child-custody determination, if any.
- Knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding; and.
- Knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons.
- In a child-custody proceeding in this State, the court may order a party to the proceeding who is in this State to appear before the court in person with or without the child. The court may order any person who is in this State and who has physical custody or control of the child to appear in person with the child.
- If a party to a child-custody proceeding whose presence is desired by the court is outside this State, the court may order that a notice given include a statement directing the party to appear in person with or without the child and informing the party that failure to appear may result in a decision adverse to the party.
- The court may enter any orders necessary to ensure the safety of the child and of any person ordered to appear.
- If a party to a child-custody proceeding who is outside this State is directed to appear or desires to appear personally before the court with or without the child, the court may require another party to pay reasonable and necessary travel and other expenses of the party so appearing and of the child.
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