Maintaining a dialogue on divorce, child custody, alimony and other family law issues

From Issue Spot: Simplifying The Custody Process When One Parent Lives Out of State

Even under the best of circumstances, child custody and parents’ rights are fraught, complex issues. If one parent lives in Massachusetts and one does not, it is even more stressful, and here’s why:

Under the Uniform Child Custody Jurisdiction Act (UCCJA) which is the current law in Massachusetts, the Commonwealth has jurisdiction over matters of child custody for a period of 6 months after the child has moved from Massachusetts to another state. Every other state except Massachusetts operates under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

This legislative session, Senator Cynthia Creem is taking the lead and has filed Senate Bill 711 which proposes having the UCCJEA supersede the UCCJA. The proposal is currently in the Joint Committee on the Judiciary awaiting a hearing date.

Interestingly enough, The UCCJEA isn’t actually a child custody law. It’s a set of guidelines designed to make interstate custody issues more uniform. It doesn’t have any effect on whether a parent receives custody or visitation, nor does it affect any substantive rights of parents. The UCCJEA is merely an enforcement tool and a method for determining which state has jurisdiction over a custody proceeding. The purpose of the UCCJEA is to create uniformity and predictability in the custody process involving one parent living in MA and the other parent living out of state.

Court jurisdiction plays an important role in custody and visitation for parents who live in different states. UCCJEA helps to determine which court has the right to hear the case and make rulings — thereby avoiding dueling custody hearings in two different states. It ensures that a jurisdictionally-proper custody/visitation order will be recognized and enforced across state lines.

Here are the basics about the UCCJEA:

The UCCJEA emphasizes enforcement. It’s true that one parent may have to travel to hearings and trials outside of their state of residence, as well as find a lawyer who can represent them in the appropriate court of law. However, the proposal permits out-of-state parties to be deposed or to testify by telephone, audiovisual, or other electronic means, which can prove less costly to the parties. With potential options such as telephone conferencing and Skype available, it is not necessarily the case that the parent and child are burdened with returning to court in the home state.

In addition, the proposal provides that the court may assess travel and other expenses associated with out-of-state litigation to one of the parties. It also means that parents who abduct their own children won’t be able to run to another state for a custody ruling that they like better than the existing one. The new proposal remedies discrimination against lesbian, gay, bisexual, and transgender persons in instances where a spouse, partner or significant other relocates to another jurisdiction – one that holds a person’s sexual orientation or gender identity against them when making custody determinations.

There are four basic considerations for a court to have jurisdiction over an initial child custody or visitation order:

  1. Where is the home state? The home state is where a child has been for at least six months prior to the legal action. The UCCJEA gives priority to the child’s home state.
  2. Is there a significant connection? Does the child have significant ties to a state and does that state have substantial evidence concerning the child?
  3. Is there a more appropriate forum? At times both the home state and the significant connection state decline jurisdiction in favor of another state that is more convenient.
  4. Is there a vacuum jurisdiction available? If no court meets the above three standards, another court may step in and rule on the initial custody proceeding.

The current proposal before the legislature tackles issues that the UCCJA does not address. The domestic violence bar raised concerns regarding situations where parents take children in order to escape domestic violence. Those concerns were incorporated into the bill as the “domestic violence exception”. Furthermore, there are additional protections for victims of domestic violence in this bill regarding police intervention and authority to order costs and fees to prevailing parties that do not currently exist. The parties may also mutually agree in writing that the court may no longer have continuing, exclusive jurisdiction in court approved agreements, which is not currently available to parties in family law proceedings.

The UCCJEA benefits both children and parents by simplifying the custody process.

- Kathleen Joyce
Director of Government Relations
Boston Bar Association

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