The UCCJEA, (the Uniform Child Custody Jurisdiction and Enforcement Act) is a uniform act that has been adopted in some form by 49 states (and the District of Columbia, Guam, and the U.S. Virgin Islands). The UCCJEA provides a framework for determining which state has jurisdiction over interstate child-custody issues. Colorado’s version of the UCCJEA can be found at C.R.S. 14-13-101. Whether a state has jurisdiction to decide a custody dispute will depend on whether:
- It is an initial custody order (meaning there are no existing custody orders entered in any state);
- A modification of an existing custody order; or,
- An emergency custody order.
If you want to know which state has jurisdiction over your children, read on:
Initial Jurisdiction under the UCCJEA
When there are no custody orders in place, whichever state is the child’s “home state” will have jurisdiction to enter custody orders. Under the UCCJEA, the “home state” is the state in which the child has lived with a parent (or person acting as a parent) for at least 6 consecutive months immediately before the custody case is filed. For a child less than 6-months old, the home state is the state in which the child has lived from birth. The home state has the exclusive right to exercise jurisdiction and enter custody orders. The “home state” can also choose not to do so in favor of another state.
Sometimes there will be no “home state” under this definition. When that happens, another state may assert jurisdiction to enter initial custody orders if the child and at least one parent have a “significant connection” with that state. This means a “significant connection” in some way other than simply being physically present in that state, and, “substantial evidence” can be found in that state concerning the child’s care, protection, training, and relationships.
A state may also assert jurisdiction to make an initial custody order if all other states that might have jurisdiction have declined to exercise jurisdiction because the state in question is a “more appropriate forum” to make the custody determination. A state can also assert jurisdiction when there is simply no other state that would have jurisdiction under any of the basis described. The more appropriate forum analysis looks at circumstances such as:
- Where the evidence and witnesses are located;
- How long the child has resided outside of the issuing state;
- The parents’ financial circumstances;
- The issuing state’s familiarity with the facts of the case; and,
- The distance between the new state and the issuing state.
Normally, when bringing a lawsuit against another party that does not reside in that state, there will be a question of whether the state in which the case is brought has “personal jurisdiction” over the out-of-state defendant. That is, whether the out-of-state defendant has enough contacts with the state to make if fair for that person to come to and defend against the lawsuit in that state. This requirement comes from the constitution so that citizens of one state cannot be sued in another state they have associated with.
In custody cases, the state does not have to have personal jurisdiction over the out-of-state parent to enter custody orders. Rather, if the state has jurisdiction over the child, the custody case may be brought in that state regardless of whether there would be a separate basis for personal jurisdiction over the out-of-state parent.
Modification Jurisdiction under the UCCJEA
Once a court enters an initial custody order, only that state has jurisdiction to modify the custody order so long as either parent or the child continues to reside in the issuing state. This rule applies unless the issuing state: (1) transfers jurisdiction to a different state on the basis that another state is a more convenient forum, or, (2) declines to exercise jurisdiction on the basis that it no longer has continuing and exclusive jurisdiction because it does not have substantial evidence regarding the child’s care, protection, training, and personal relationships.
The easiest and most likely scenario in which a new state will have jurisdiction over custody matters is where both parents and the child have moved out of the issuing state. In that case, you will again look at which state (if any) would be the child’s home state. That means that if the parents and the child have all moved out of the issuing state less than six months ago, there may not be an easy or clear answer to this question.
Keep in mind that when attempting to transfer jurisdiction based on a finding that the issuing state is an inconvenient forum or no longer has continuing, exclusive jurisdiction, the original issuing state must make the determination to relinquish and transfer jurisdiction to a new state—the new state cannot unilaterally make that determination.
Where there are factual disputes (for example, regarding where the child and/or the parents are living), or disputes about which state would be more convenient, the courts of the various states involved will confer to discuss the issue and render a decision. This avoids a scenario where you could otherwise end up with competing orders from different states. These competing orders are precisely what the UCCJEA was enacted to prevent.
Emergency Jurisdiction under the UCCJEA
The UCCJEA also provides a basis for a state to assert temporary jurisdiction in the event of an emergency, even if there are custody orders entered in a different state that still has jurisdiction. A state that does not otherwise have jurisdiction over the child may have temporary, emergency jurisdiction where the child is present in that state, and the child (or a sibling or parent) has either been abandoned or is being mistreated or abused. For example, if your child is in Colorado visiting the other parent, and you learn that the child is being mistreated or abused, you may file for relief in Colorado on the basis of temporary emergency jurisdiction to ask the court to enter orders as may be appropriate to protect the child. The court of the issuing state and the state with emergency jurisdiction will communicate and issue orders in conjunction with one another as necessary to protect the child from the emergency circumstances.
Registering Your Orders
If your child will be traveling to another state to exercise parenting time with the other parent, or moving to another state as their new primary residence, outside of the state that has entered custody orders, it is would be wise to formally register your out-of-state custody orders in the new state so that you have a legal mechanism to enforce the custody orders in that state, if needed. The orders also need to be registered in the event you determine it may be appropriate to transfer jurisdiction to the new state for modification purposes. There is a formal process to register out-of-state orders, which involves filing certified copies of the out-of-state orders in the new state.
Danielle N. Contos is an Senior Associate at Griffiths Law. Danielle’s practice has focused on complex financial matters, parental responsibilities, interstate jurisdictional disputes, and challenges to and enforcement of premarital agreements. Danielle has also been named to Colorado Super Lawyers “Rising Star” list from 2017-2019.