The Uniform Child Custody and Parental Kidnapping Protections Acts
These days, people move around a lot more than they used to. It is not unusual for a child to live in two or more different states before he or she turns eighteen. Sometimes, a child's parents may even live in two different states. Maybe the child's parents are not living together any more. Maybe one parent has moved to another state and taken the child to live with him or her, or maybe one parent has moved to another state and left the child with the other parent. Or maybe the situation is even more complicated. Maybe one parent lives in one state, the other parent lives in another state, and the child is being cared for by relatives in yet another state.
Sometimes, the adults in a child's life need to ask a court to decide who should care for the child. Those adults may be the child's parents, or they may be other people, like grandparents. But if the child is in one state, and one of these adults is in another state, which state's court gets to decide who should care for the child? The answer is, the state that has jurisdiction.
What Is Jurisdiction?
Jurisdiction is the right to make decisions about something or someone. If a state has jurisdiction over a child, it means that state's courts can make decisions about who should care for that child.
How Can I Tell Which State Has Jurisdiction?
It used to be hard. Until the 1990s, most states had laws saying they could make decisions about any child living there. This led to a lot of problems. Let's say State A gave custody of a child to the child's mother. The child's father could take the child to State B, buy or rent a place to live there, and ask the court in State B to give him custody. Lawyers call this "forum shopping:" going to another state hoping to get a better result. Forum shopping led to a lot of very unfair situations. If the father came from State B, he might have a lot of people there to help him. The mother, on the other hand, would have had to travel all the way from State A to appear in court in State B, where she might not know anybody. Or State B might be a state where judges are more willing to give custody to fathers, while State A might be a place where judges prefer mothers.
In the 1990s, most of the fifty states passed laws to stop forum shopping. When they wrote these laws, most of them used as their model a document called the Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA.
How Does the UCCJEA Help Decide Which State Has Jurisdiction?
The most important part of the UCCJEA is an idea called the "home state." Under the UCCJEA, only a child's home state can make decisions about who should care for that child. A state can only be a child's home state if the child:
- had already been living in that state for six consecutive months on the date a custody case is filed; or
- lived in that state for six consecutive months within six months of the date a custody case is filed." Consecutive" means "in a row."
An example will help us understand this:
Carol and Mike are from California. They are not married. They have a daughter named Alice. Alice was born in California, and never lived anywhere else until just after her first birthday. Just after Alice turned one, Carol and Mike decided to split up. Carol took Alice and came to live in Iowa. A month after she and Alice got to Iowa, Carol filed a custody lawsuit in an Iowa court. She asked the Iowa court to decide who should have physical custody of Alice and who should get visitation.
Can the Iowa Court Hear Carol's Case?
No. Iowa's version of the UCCJEA says Iowa does not have jurisdiction over Alice because Iowa is not Alice's home state. Remember that Alice was born in California and lived there until she was one year old. Then her mother took her to Iowa, and filed a custody lawsuit one month later. Iowa's version of the UCCJEA says Iowa only has jurisdiction over Alice if Iowa is Alice's home state. Iowa can only be Alice's home state if she:
- had already been living here for six consecutive months on the date the case was filed; or
- lived here for six consecutive months within six months of the date the case was filed.
Alice had only been on Iowa for one month when the case was filed, so "A" won't work. Alice has never lived in Iowa for six consecutive months, so "B" won't work either. Iowa cannot be Alice's home state. If Carol wants a custody order, she will have to go back to California and file her case there.
What If a Child Lives in a New State for Six Months?
Let's say Carol waits six months, then files her custody case here in Iowa. Now Iowa does have jurisdiction over Alice. An Iowa court may hear Carol's case. If Mike wants to have his side of the story heard, he will have to come to Iowa.
But what if Mike comes to live in Iowa too? If Mike moves to Iowa, we won't need to worry about jurisdiction any more. Everybody who has an interest in the case will be in Iowa, and Iowa's courts will have no problem hearing Carol's custody case.
Does the UCCJEA Work the Same Everywhere?
Not necessarily. In the United States, there are almost no federal laws that deal with family matters (divorce, custody, child support, etc.). For the most part, family law is different in every state. Most states have passed versions of the UCCJEA that are basically the same. After all, the whole point of the UCCJEA is to make it harder for somebody to take advantage of different laws in different states. The "U" in UCCJEA stands for "uniform," which means "the same everywhere." Still, it is important to remember that every state is free to pass the UCCJEA exactly as it was written, change it a little, change it a lot, or not pass it at all. Most states have passed the UCCJEA with no or few changes. A few have made big changes, and a few have not passed it at all. If you are having a child custody problem that involves another state besides Iowa, you will need to look at the other state's laws. Consult an attorney if you have questions. An Iowa attorney may not feel comfortable giving you advice about another state's laws. You may need to consult an attorney in Iowa and another attorney in the other state.
One of the few federal laws that talks about child custody is the Parental Kidnaping Prevention Act or PKPA. The PKPA says that every state must respect custody order made by courts in other states. It also says that the best place for any case involving custody is the child's home state. The PKPA defines "home state" the same way the UCCJEA does. Because it is a federal law, it applies everywhere.
Can One State Change a Custody Order Made by Another State?
Yes, as long as that state is now the child's home state. The point of the UCCJEA is to make it harder for someone who is unhappy with one state's order to keep trying other states. But sometimes a child really does become a resident of another state. Let's look at another example:
Jason and Heather got married in Arkansas. They had a son named Dalton. When Dalton was one, Jason and Heather got divorced in Arkansas. The Arkansas court gave custody of Dalton to Jason. Heather moved to Iowa. Right after the divorce, Jason became disabled. He was too sick to take care of Dalton, so Dalton went to live with Heather in Iowa. Five years passed. Now Jason wants Dalton to come back to Arkansas. Heather believes Jason is still too sick to take care of Dalton. She wants to ask an Iowa court to change the Arkansas divorce decree so that it gives her custody of Dalton.
Can She Do It?
Yes, but not right away. Arkansas still has jurisdiction over Dalton, because an Arkansas court issued the divorce decree saying Jason should have custody of him. But that was five years ago, and things have changed a lot. Dalton is now six, and he has lived all but the first year of his life in Iowa. He has started school in Iowa. His school records are all in Iowa, and most of his medical records are in Iowa too. His friends and neighbors are in Iowa, he goes to church in Iowa, and all his activities take place in Iowa. Heather can try to get the Arkansas decree changed in Iowa, but she will have to start in Arkansas. She will have to ask the Arkansas court to say that Dalton no longer has a "significant connection" with Arkansas, and that most of the information about Dalton's life is in Iowa. In other words, she must ask the Arkansas court to agree that Arkansas is not really Dalton's home state any more. Once she does that, she can ask the Iowa court to change the Arkansas decree. Of course, the Iowa court must still ask that all-important UCCJEA question: is Iowa Dalton's home state? As we've seen, it is: if Heather files her case today, Dalton will have lived in Iowa for five years on the date the case is filed. That's much more than the six months Iowa law requires.
What If a Child Hasn't Been in Iowa Six Months But Really Needs a Custody Order?
In certain situations, Iowa's UCCJEA allows Iowa courts to take "temporary emergency jurisdiction" of a child. An Iowa court can only do this if the child is in Iowa. In addition to the child being in Iowa, there must be evidence that the child has been abandoned, or that the child (or the child's brothers, sisters or parents) are threatened with mistreatment or abuse.
Does the Six-Month Rule Always Apply?
Almost always. There are a few situations where someone can ask a state not to take jurisdiction even though the child has lived there for six months or more. In Iowa, you can ask a court not to take jurisdiction because the other parent has engaged in "unjustifiable conduct." Let's say a parent takes a child from another state and hides from the other parent in Iowa. Six months later, the parent who took the child files a custody case in Iowa. The other parent could ask the Iowa court to refuse to hear the case. After all, Iowa is only the child's "home state" because the first parent hid the child here. You can also ask an Iowa court to refuse to hear a custody case because Iowa would be an "inconvenient forum." You would have to show that, even though the child has been here six months, it would be unfair to make you appear in court here. Often this is because too many of the people who are familiar with the child's life live far away.
Does the UCCJEA Only Apply to Divorce Decrees?
No. The UCCJEA applies to any case where a court is asked to decide who should care for a child. This includes divorces, custody cases (where the parents are not married but still need a court order saying who has custody), guardianships, adoptions, parental rights terminations, and other kinds of cases. It does not apply to cases that only deal with child support, medical support, college support, or other money matters.
The UCCJEA doesn't just apply to parents, either. It applies to anybody who might be caring for the child. This includes legal guardians, foster parents, people trying to adopt a child, and even the state.
Finally, the UCCJEA doesn't just apply to states. It applies to any place where United States law must be followed. This includes Indian reservations, and US territories like Puerto Rico, Gaum, and the District of Columbia.
Iowa Legal Aid provides help to low-income Iowans.
To apply for help from Iowa Legal Aid:
- Iowans age 60 and over, call 800-992-8161.
- Apply online at iowalegalaid.org