Applying Jurisdictional Statutes in Interstate Custody Cases to Protect Survivors and Their Children

1. Applying Jurisdictional Statutes in Interstate Custody Cases to Protect Survivors and Their Children Deborah Goelman Darren Mitchell Christine Pate

2. Legal issues in relocation • Has a custody order been entered? • Can she leave without violating the order? • Effect of flight on potential immigration relief? • Parental kidnapping or custodial interference law (criminal)? • Domestic violence exemption? • Domestic violence defense? • Child protection defense? • Relocation law? • Protection order law? • UCCJA/UCCJEA? • Custody law? • Confidentiality laws – including identity change – can she do it without publication and can the file be sealed? • Likelihood that she’d be brought back into litigation here?

3. Non-legal issues in relocation • Is the refuge state safer? • Economic opportunities? • Shelter? • Police response? • Childcare? • Family support? • Legal assistance? • Would a protection order be effective? • How do the two states handle interstate custody cases? • How do the two states enforce protection order laws?

4. Federal Laws • VAWA 2005: the Violence Against Women Act of 2005 (P.L. 109-162, amended the original VAWA and VAWA 2000) • PKPA: the federal Parental Kidnapping Prevention Act (including important amendments made by VAWA 2000) (28 U.S.C. § 1738A) • ICWA: the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.)

5. State laws • UCCJA: the Uniform Child Custody Jurisdiction Act • UCCJEA: the Uniform Child Custody Jurisdiction and Enforcement Act • State full faith and credit statutes State relocation, parental kidnapping and protection order laws also may be relevant to custody cases involving domestic violence, although they are not jurisdictional laws.

6. UCCJEA: • Developed in 1997 • Designed to replace the UCCJA • Intended to reconcile differences between the UCCJA and PKPA • So far 45 states, D.C., and the U.S. Virgin Islands have enacted it; currently being considered by others • Significant improvement for battered women

7. Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware District of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Dakota Tennessee Texas U.S. Virgin Islands Utah Virginia Washington West Virginia Wisconsin Wyoming UCCJEA Adoption Kansas Kentucky Louisiana Maine Maryland Michigan Minnesota Mississippi Montana Nebraska Nevada New Jersey New Mexico New York North Carolina

8. UCCJEA: • Jurisdictional bases: • Home state trumps other bases (except emergency) • Significant connection • “More appropriate forum” jurisdiction • “No other state” jurisdiction

9. UCCJEA: • Temporary emergency jurisdiction: • Where “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.” • Child must be present in the state • This means that a court can exercise emergency jurisdiction in domestic violence cases where the mother (but not the child) has been abused

10. UCCJEA: Inconvenient Forum: Factors explicitly include: • Whether domestic violence has occurred and is likely to continue and which state could best protect the parties and the child • The length of time the child has resided outside of the state • The distance between the two courts • The relative finances of the parties

11. UCCJEA: Inconvenient Forum: Factors explicitly include (cont.): • The agreement of the parties • The nature and location of the evidence including the child’s testimony • The ability of each court to decide the issue expeditiously and the procedures necessary to present the evidence • The familiarity of each court with the facts and issues in the pending litigation

12. Parental Kidnapping Prevention Act (PKPA) 28 U.S.C. § 1738A • Enacted by Congress in 1980 to fix problems with UCCJA • PKPA is a full faith and credit law: it tells courts when to honor custody determinations issued by courts in other states or tribes • As federal law, trumps contrary provisions of UCCJA and other state laws • Same jurisdictional bases as UCCJA but prioritizes home state jurisdiction

13. Continuing Exclusive Jurisdiction Under the PKPA and the UCCJEA, once all of the parties and children have left the state that issued the initial custody order, that state no longer retains jurisdiction. Under the PKPA, if a party remains in the initial issuing state (and if it issued the original custody order consistent with the PKPA), it has continuing jurisdiction. Under the UCCJEA, if a party remains in the initial issuing state, only that state may determine whether the parties continue to have a significant connection with the state and whether there is substantial evidence in the state, creating continuing jurisdiction.

14. State parental kidnapping laws Must there be a court order for kidnapping to occur? • Some states require flight with children in violation of a court order • Some criminalize flight even in the absence of a court order • Some state laws are unclear • Some expressly criminalize fleeing in both contexts, but create more serious penalties for violating a court order

15. State parental kidnapping laws Are there any protections for domestic violence survivors? • In many states: Yes • But the exact nature varies: • Exemptions or defenses • By statute or by case law

16. National Organizations • Legal Resource Center on Violence Against Women (301) 270-1550, lrc@lrcvaw.org, www.lrcvaw.org • National Clearinghouse for the Defense of Battered Women (800) 903-0111, ext. 3 • National Center on Full Faith and Credit (800) 903-0111, ext. 2