The Uniform Child Custody Jurisdiction and Enforcement Act ["UCCJEA"] was enacted to serve the following purposes: (1) to avoid interstate jurisdictional competition and conflict in child custody matters, (2) to promote cooperation between courts of other states so that a custody determination can be rendered in a state best suited to decide the case in the interest of the child, (3) to discourage the use of the interstate system for continuing custody controversies, (4) to deter child abductions, (5) to avoid relitigation of custody issues, and (6) to facilitate enforcement of custody orders. The UCCJEA treats a foreign country, such as Japan, as a state of the United States, unless the laws of the foreign country violate fundamental principles of human rights. [See section 207] Home state jurisdiction is prioritized to make this uniform law consistent with the Parental Kidnapping Preventation Act.
The UCCJEA contemplates jurisdiction in the state where the child and parents have actually lived for at least six months immediately prior to the commencement of a child custody action. Subjective intent of the parents is not important. This issue often arises with respect to deployed parents who have lived abroad with the child for an extended period of time. Servicemembers do not lose their legal residency ["home of record"] just because they are or have been deployed abroad. But that does not mean that the home of record is a state having home state jurisdiction to make an initial child custody determination.
Consider the following case, which illustrates the importance of the prioritizing of home state jurisdiction. The court held that the "state" (in this case, Japan) having home state jurisdiction was the state where the child had actually lived with a parent or parents immediately preceding the filing of the child custody proceeding.Carter v Carter, 758 NW2d 1 (NB 2008) presented a dispute over whether Nebraska had jurisdiction over a child custody dispute under the UCCJEA. After living in Nebraska for about 3 years, Stuart Carter, his wife, Nahoko Hata Carter, and their 10-week-old son moved to Japan for approximately 2? years during Stuart's permanent military duty assignment. At the end of his assignment, without warning or Nahoko's consent, Stuart took Alex to Nebraska and immediately filed for legal separation and custody.
Nahoko, who was both a Japanese and an American citizen, filed a motion for summary disposition, arguing that Nebraska was not Alex's home state and, therefore, did not have jurisdiction over the parties and the subject matter.
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Under the facts of this case, for Nebraska to exercise initial jurisdiction over a child custody dispute, Nebraska must be the home state as defined by the UCCJEA. The UCCJEA provides that a state has jurisdiction to make an initial custody determination only if under section 201??????
(1) this 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 six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.
Stuart Carter asserted that the Nebraska court properly exercised jurisdiction over Alex because, at the time of the filing, Nebraska was Alex's home state. Home state of the child is defined in the UCCJEA as
the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six 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.
The Carter panel emphasized that in an earlier decision, the Nebraska Court of Appeals had held that the plain and ordinary meaning of "home state" is the state where the child has "lived" with a parent or person acting as a parent for the 6 months immediately preceding the action. Stuart's? argument that the 2 years spent in Japan was only a "temporary absence" from Nebraska and that thus, Alex continued to live in Nebraska for well over the requisite 6-month period was rejected. Section 201 states that "[a] period of temporary absence of any of the mentioned persons is part of the period." Thus, under the UCCJEA, a "temporary absence" should be counted as part of the 6 months during which the child must live in a state for it to be the home state.?????
Stuart argued that the absence was temporary because it was due to a military assignment, but the Court disagreed, holding that time spent living in another state or country due to a permanent military duty assignment is not considered a "temporary absence" simply because it was motivated by such assignment. Stuart's subjective intent about residency did not carry the day. It is the state where the child was actually living for at least 6 months prior to the commencement of the action that had home state jurisdiction.
Since Alex had moved to Japan with both parents and had actually lived there for more than two years, Japan had become Alex's new home state. Therefore, custody jurisdiction was in Japan. [The UCCJEA considers a foreign country as a "state" with some exceptions, not raised in this case. See UCCJEA Section 105.] Alex's mother was awarded substantial attorney fees and costs since she had to come all the way from Japan to Nebraska to defend against Stuart's claim.
Download Carter_v_Carter
Once all parents and children have left a state, then a return to the former home state by one parent does not restore home state jurisdiction to that state. See UCCJEA ? 202 NCCUSL commentary number 2 (noting that all members of the family have left the state to reside elsewhere, a parent cannot reestablish "exclusive, continuing jurisdiction" in the first state by resuming residence in that state). See also Griffith v Tressell, 925 A.2d 702 (2007). Download Griffith v Tressel
Additional resources: Commentary of NCCUSL on sections 202 and 203 of the UCCJEA.
Download Comment to Section 202 and 203
See also the Commentary of the National Conference of Commissioners on Uniform State Laws for the UCCJEA. Download Commentary.UCCJEA
Full text of Michigan's UCCJEA: Download UCCJEA, Michigan
More about parental kidnapping may be found here.
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