Domestic Violence and the UCCJEA

1. Domestic Violence and the UCCJEA August 8, 2013 Deborah Goelman, Esq. Darren Mitchell, Esq. Legal Resource Center on Violence Against Women

2. Summers v. Stone Dawn Summers has filed for sole custody of her two children, Amanda, age 4, and Jacob, age 2, in your court and asks you to suspend the father’s visitation. Her petition states: “I fled to New Orleans from Phoenix, Arizona two weeks ago with the children. My parents live in New Orleans, and I wanted to feel safe. The children’s father, Matt Stone, has abused me for years, and continues to abuse me during visitation exchanges even though we are separated. Last month, on July 20th, he pointed a gun at me in front of the children when I picked them up from a visit. He threatened that I would never see the children again if I did not come back to live with him.” The prior custody order from the Maricopa County Court (Arizona) granted joint legal custody to both parents, physical custody to Ms. Summers, and reasonable visitation to Mr. Stone. 2

3. Summers v. Stone Do you have jurisdiction to grant the requested relief? 3

4. The UCCJEA • Developed in 1997 • Designed to replace the UCCJA • Intended to reconcile differences between the UCCJA and PKPA • So far 49 states, D.C., and the U.S. Virgin Islands have enacted it • Several provisions address domestic violence explicitly

5. UCCJEA Adoption Who’s missing? Massachusetts

6. Decision-Making Framework Under the UCCJEA • Is there an emergency? (temporary emergency jurisdiction) • Is there an existing custody order and/or custody proceeding in another state? If so, do I have jurisdiction to modify any orders or to issue a new order? • If there is no emergency or existing order/proceeding, do I have initial child custody jurisdiction? • If I have jurisdiction to enter an initial custody order or to modify an existing order, should I decline to do so?

7. Question 1 Is there an emergency? (temporary emergency jurisdiction) 7

8. Temporary Emergency Jurisdiction Under the UCCJEA, temporary emergency jurisdiction allows a court to enter an emergency order even if: It does not have otherwise have jurisdiction to enter an initial long-term order (e.g., it is not the home state) Another court already has issued a valid custody order and that state has exclusive, continuing jurisdiction By asking this question first (and including questions about emergency jurisdiction in UCCJEA forms) judges can permit parties to obtain emergency relief where necessary and permitted by the statute 8

9. Temporary Emergency Jurisdiction A simple option -- check box on New York UCCJEA Petition: “This Court should modify the order on a temporary, emergency basis, pursuant to Domestic Relations Law §76-c, because the child(ren) (is) (are) presently in this State and [check one or both boxes]:  the child(ren) (has)(have) been abandoned;  it is necessary in an emergency to protect the child(ren), a sibling or siblings or parent of the child(ren).” 9

10. 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 • A court can exercise emergency jurisdiction in domestic violence cases where the mother (but not the child) has been abused

11. Temporary Emergency Jurisdiction A court may take jurisdiction to protect a child even if it does not have initial child custody jurisdiction (e.g., it is not the home state) and/or it does not have jurisdiction to modify an existing order (another state has exclusive, continuing jurisdiction) Such orders are temporary; designed to give the parties an opportunity to return to the state with preferred jurisdiction Judicial communication is required Once the court learns of an action in another state or that an order has been issued in another state Purpose: “to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.” 11

12. Judicial Communication • The court may allow the parties to participate in the communication • If the parties are not able to participate, they must have an opportunity to present facts and legal arguments before a decision on jurisdiction is made • A record of a communication must be made, and the parties must be informed promptly of the communication and given access to the record • Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties and no record of the communication is necessary

13. Temporary Emergency Jurisdiction Temporary emergency order can become a permanent order if: (1) the order so indicates; (2) no other order has been entered or proceeding commenced in another court; and (3) the issuing state becomes the home state Temporary emergency order can become a permanent order if: (1) the order so indicates; (2) no other order has been entered or proceeding commenced in another court; and (3) the issuing state becomes the home state 13

14. What if Dawn had applied for a protection order, including a custody provision, rather than an emergency custody order? Can you exercise jurisdiction under those circumstances? What laws apply and how? 14

15. Emergency Jurisdiction via Protection Order The UCCJEA contemplates courts issuing temporary emergency custody by means of domestic violence protection orders State protection order codes may provide additional authority for issuing custody provisions within protection orders (see La. R.S. § 46:2136 (A)(3)). Courts should note compliance with both of these sources of authority to help facilitate enforcement of the orders Courts should comply with the UCCJEA requirement to communicate with another court having jurisdiction under the UCCJEA 15

16. How can courts remove barriers that prevent abused parents from petitioning for emergency relief? • Train clerks and court personnel on the availability of temporary emergency relief • Revise forms to facilitate requests for emergency relief and the presentation of probative evidence re: the emergency

17. Question 2 Is there an existing custody order and/or custody proceeding in another state? If so, do I have jurisdiction to modify any orders or to issue a new order? 17

18. Modification Jurisdiction Let’s assume that Dawn filed her petition in your court but did not allege an emergency. Would you have jurisdiction to modify the order?

19. Modification of Custody Determinations Concept of “exclusive, continuing jurisdiction” limits the ability of a non-decree state to modify a valid existing custody order or to enter a new one governing the same parties and child if there is an existing order

20. Exclusive, Continuing Jurisdiction Statutory Language: (A)“Except as otherwise provided [in the UCCJEA’s section on emergency jurisdiction], a court of this state which has made a custody order [consistent with the UCCJEA] has exclusive, continuing jurisdiction over the order until: 1) a court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships, or

21. Exclusive, Continuing Jurisdiction Statutory Language: “ 2) a court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state B) A court of this state which has made a child-custody determination and does not have continuing, exclusive jurisdiction may modify the determination only if it has jurisdiction to make a initial determination” The UCCJEA also includes parallel “modification” language with consistent standards for the modification state court 21

22. Exclusive, Continuing Jurisdiction What does it mean?: The new state court may modify the existing order if: (1) The court in the original decree state found that no one has a significant connection with the state and that there is no longer substantial evidence in the state; or (2) The new court determines that the child, the parents, and any person acting as a parent do not presently reside in the original decree state; or … 22

23. Exclusive, Continuing Jurisdiction What does it mean?: The new state court may modify the existing order if: (3) The original court declines to exercise modification jurisdiction on inconvenient forum grounds; or (4) The new court determines that it has temporary emergency jurisdiction (temporary modification only; requires judicial communication with the issuing court to determine next steps) 23

24. Question 3 If there is no emergency or existing order/proceeding, do I have initial child custody jurisdiction? 24

25. Let’s return to Dawn and Matt and assume that the family lived together for fifteen years in Arizona and a custody order never was entered. Eight months ago, Dawn relocated to Louisiana with the two children, and now she petitions your court for a custody order.

26. Question 3 Can you hear the custody case? (and make an initial child custody determination) 26

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

28. Louisiana is the home state because Dawn and the children have lived there for eight months

29. Home State Jurisdiction • Extended Home State Rule • Temporary Absence • Child Less Than Six Months Old • Home State due to Emergency or Disaster (see La. Rev. Stat. § 13:1802(7)(b))

30. How is the home state defined? “Home state” means the state in which the child lived with a parent or a person acting as parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than 6 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.

31. Extended Home State Assume that Dawn left Arizona 5 months ago and at that point Matt filed for custody in AZ. Does the AZ court have jurisdiction despite the absence of the children? YES, as long as Matt remained in AZ: A home state retains jurisdiction for six months even if a party or the child have left the state (under the “Initial Child Custody Jurisdiction” provision of the UCCJEA, a state has jurisdiction if it “was the home state of the child within 6 months before the commencement of the proceeding…”) This doctrine sometimes is known as the extended home state rule 31

32. Temporary Absence A home state retains jurisdiction even if a party or child has left the state for a “temporary absence” “Temporary absence” is not defined by statute, but may be defined under a state’s case law Courts have differed in their analysis of what constitutes a “temporary absence” Some look only to the subject intent of the parties; others take a totality of the circumstances approach In some instances, absence of many months have been deemed to be “temporary,” especially in the case of military deployments/assignments 32

33. Emergency or disaster When a parent or a person acting as a parent is required to evacuate this state with a minor child because of an emergency or disaster declared under the provisions of R.S. 29:721 et seq., or declared by federal authority, and for an unforeseen reason resulting from the effects of such emergency or disaster is unable to return to this state for an extended period of time, this state shall be determined to be the home state if the child lived with his parents, a parent, or a person acting as his parent for a period of at least twelve consecutive months immediately preceding the time involved.La. Rev. Stat. § 13:1802(7)(b). 33

34. Additional Jurisdictional Bases • Significant Connection Jurisdiction • More Appropriate Forum Jurisdiction • No Other State (Vacuum) Jurisdiction

35. Additional Jurisdictional Bases Assume now that Dawn does not raise the issue of domestic violence and that she and the children relocated to New Orleans just three months ago. Dawn chose to relocate to New Orleans because her parents and two siblings live there, and she and the children have visited frequently in the past. The children have spent part of the last three summers with Dawn’s family in New Orleans. Dawn has filed for dissolution and for custody of the children in your court in New Orleans. 35

36. Is there any other basis to take jurisdiction over this case? (assume Dawn does not mention domestic violence nor allege any emergency circumstances) 36

37. Does the analysis change if Matt decides to move to Alabama one month after Dawn leaves? YES 37

38. These situations raise the issue of significant connection jurisdiction 38

39. Significant Connection Jurisdiction Available as a jurisdictional base only if there is no home state or if the home state has declined to exercise jurisdiction and (i) “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 (ii) substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships” 39

40. Significant Connection Jurisdiction There is no need for a court to engage in a significant connection analysis where a home state exists The home state trumps other jurisdictional bases under federal law and under the UCCJEA Note, however, that a state with emergency jurisdiction can issue a short-term order that trumps an order from the home state 40

41. Question 4 If I have jurisdiction to enter an initial custody order or to modify an existing order, should I decline to do so? 41

42. Inconvenient Forum • Court with preferred jurisdiction may decline to exercise jurisdiction at any time if it determines that it is an inconvenient forum and that a court of another state is a more appropriate forum • May be raised by motion of a party, the court’s own motion, or request of another court • Court must consider all relevant factors, including a specified list of 8 factors

43. Inconvenient Forum 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

44. Inconvenient Forum Inconvenient forum factors explicitly include (continued): • 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

45. Inconvenient Forum Practice Exercise: Tina Blue v. Mark Blue

46. Inconvenient Forum The presence and effect of domestic violence is the first factor a court must consider when considering an inconvenient forum request Courts have concluded that this factor can outweigh the other factors The relative finances of the parties also can be relevant in many domestic violence cases, since batterers often exert financial control over survivors 46

47. Inconvenient Forum In Re Stoneman v. Drollinger(64 P.3d 997, Mont. 2003) Mother relocated from Montana to Washington with four children, and Washington trial court issued a permanent protection order. Mother then filed a motion requesting that the Montana court decline jurisdiction under the UCCJEA, which the trial court denied. The Supreme Court of Montana reversed, holding that the lower court erred by denying mother’s motion. The trial court failed to consider which forum could best protect mother and children from further abuse when evaluating whether transfer of proceedings to Washington was appropriate.

48. Inconvenient Forum In Re Stoneman v. Drollinger(cont.) The Supreme Court of Montana held that “the UCCJEA places domestic violence at the top of the list of factors that courts are required to evaluate when determining whether to decline jurisdiction as an inconvenient forum for child custody proceedings.” It ordered the trial court to communicate with the Washington court, and, if transfer could be arranged, to decline jurisdiction based on inconvenient forum. The Supreme Court of Montana urged trial courts “to give priority to the safety of victims of domestic violence when considering jurisdictional issues under the UCCJEA.”

49. Why is declining jurisdiction often appropriate in cases involving domestic violence? • If the parties are in different states because of the violence, it could be unsafe for the survivor to return to the home state to litigate a custody case (see e.g., commentary to UCCJEA Section 207) • A survivor may not have the financial means to return to the home state due to the perpetrator's financial abuse

50. Why is declining jurisdiction often appropriate in cases involving domestic violence? • A survivor may have fled to a safe haven where family members can offer secure shelter, shared housing, childcare, or employment opportunities, increasing the survivor’s ability to leave the abuser • Due to separation violence, a survivor may be at increased risk for physical violence or homicide when she takes steps to leave; forcing a return to a state where the batterer resides could be deadly