Comparing UCCJEA and UCCJA
Which is Better for Domestic Violence Victims
May 1, 2000
Jenn DeCarli
On December 21 1999, Governor Pataki vetoed the enactment of a new uniform act, the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), which would have replaced the current Uniform Child Custody Jurisdiction Act (UCCJA), codified in New York Domestic Relations Law Article 5A. Fifteen other states have currently adopted the UCCJEA. The purpose of the UCCJA and UCCJEA are to govern when a court has jurisdiction in an interstate custody dispute as well as to provide guidelines on how to enforce out of state custody orders. The UCCJA has been codified in New York law since 1977. There is also a federal law, the Parental Kidnapping Prevention Act (PKPA) (28 U.S.C. S 1738A), which mandates that full faith and credit be given to child custody determinations. Pursuant to the Supremacy clause, whenever the UCCJA or the UCCJEA are inconsistent with the PKPA, the PKPA prevails.
UCCJEA Background
The UCCJEA was developed by the National Conference on Commissioners of Uniform State laws in 1997, with the recognition that for various reasons, the UCCJA needed to be reworked. Most importantly, the UCCJA is inconsistent with the PKPA. Under the UCCJA, the court can consider significant connection jurisdiction as a basis for making an initial custody determination (See D.R.L. S 75-d (1)(b)). This is inconsistent with the jurisdictional requirements for when a state can make an initial child custody determination or modification under the PKPA. The PKPA mandates that only the child's home state can make an initial child custody determination unless no other state would have jurisdiction, it is necessary in an emergency to protect the child or the home state declines jurisdiction (28 U.S.C. S 1738A (9)(c)(2)).
Additionally, under the UCCJA, the courts can modify orders under significant connection jurisdiction and there are no requirements that the court of the other state decline jurisdiction first (See D.R.L. S 75-d). In contrast, under the PKPA and UCCJEA, a court can only modify another state's child custody determination if the state has jurisdiction to make such a determination and the court of the other state no longer has jurisdiction or it has declined to exercise such jurisdiction (See 28 U.S.C. S 1738A(f)). The other state has exclusive jurisdiction to modify any of its orders provided the child or one of the contestants continues to live in the state (See 28 U.S.C. S 1738A (d)).
A recent 4th Department decision demonstrates the confusion that can result due to the inconsistencies between the PKPA and the UCCJA. In Reis v. Zimmer, 700 N.Y.S.2d 609, (N.Y.A.D. 4 Dept. 1999), the court reversed a trial court's order that modified the ex-husband's visitation rights because the Massachusetts court continued to have jurisdiction over the divorce proceeding. Since the initial custody determination was made in Massachusetts, the mother's relocation request was approved there, all orders stated that the Massachusetts court would continue to have jurisdiction over the matter and one of the contestants (the father) continued to reside there, the PKPA mandated that the Massachusetts courts have exclusive jurisdiction over any subsequent modifications (See 28 U.S.C. S 1738A(c)(1)). As a result, the New York court could not modify the visitation provisions of the order, even though New York was the home state of the children. Id at 615 - 618.
Additionally, the UCCJA is inconsistent with the full faith and credit provisions of the Violence Against Women Act (See 18 U.S.C. 2265 - 2266). Under the full faith and credit provision of the Violence Against Women Act, states must give full faith and credit to any out of state or tribal court orders of protection as long as due process requirements have been met. However, the UCCJA does not address whether or not tribal court orders are covered under the Act. Additionally, it does not specify whether or not custody orders issued in order of protection proceedings are subject to the Act. In contrast, the UCCJEA specifically defines child custody proceeding to include proceedings involving protection from domestic violence, in which the issue may appear (See UCCJEA S 102(4)) and tribal court orders are specifically addressed as well (See UCCJEA S 104). Without the governor's veto, there would have been consistency with VAWA.
The Governor's Concerns
Governor Pataki vetoed the UCCJEA due to his concerns that the bill did not adequately protect victims of domestic violence and children in general (See S4138 A Veto Message No.64).
Further, the Governor stated in the veto message that the bill did not adequately protect the address confidentiality of victims of domestic violence and domestic violence shelters. Currently, the UCCJA explicitly states in D.R.L. S 75-j (4)(b) that the address of a party seeking custody shall not be revealed if that party has resided or is residing in a residential program for victims of domestic violence. Furthermore, D.R.L. S 75-j(4)(c) allows courts to waive disclosure of the present and prior addresses of the child or a party if it's necessary for the child's or party's physical or emotional safety.
In contrast, Section 76-H of New York's proposed UCCJEA addresses what information must be submitted to the court. It states that the information requirements are subject to Section 154(b) of the Family Court Act and Section 5 of this section. Family Court Act (F.C.A.) Section 154(b) allows petitioners and respondents in every order of protection proceeding pursuant to the F.C.A., to keep their address confidential upon their own motion or the court's own motion if the court finds disclosure would substantially increase the risk of violence to the requesting party. Section 76-H (5) of New York's proposed UCCJEA would allow a party to keep identifying information confidential if they allege in an affidavit or pleading that the health, safety or liberty of a party or child would be jeopardized. The court can still order disclosure if after a hearing in which the court takes into consideration the health, safety or liberty of the party or child, it determines that disclosure is in their best interests, as well as the interest of justice.
The Governor found that in comparison to the current UCCJA, the UCCJEA's system of address confidentiality is "overly convoluted and confusing" since it establishes two different standards of review for address confidentiality - F.C.A. 154-b and S 76(H)(5) of New York's proposed UCCJEA (See S4138A - Saland, Veto Message No.64)
The Governor's veto expressed concern regarding whether or not the UCCJEA would adequately protect children. Unlike the UCCJA, the UCCJEA provides a much more specific and inclusive definition of which legal proceedings constitute custody determinations (See New York's proposed UCCJEA S 75(4)). Currently, under the UCCJA, child protective proceedings are not considered child custody determinations. As a result, New York courts have independent jurisdiction to hear child protective proceedings regardless of whether or not there is an out of state custody order. [1]
The UCCJEA would provide protection to children involved in child protective proceedings through the use of the temporary emergency jurisdiction section (S 76-C of New York's proposed UCCJEA). This section provides that a court has temporary emergency jurisdiction if the child is present in the state and the child has been abandoned or it is necessary in an emergency to protect the child, a sibling or parent of the child.
Notwithstanding, the Governor expressed concern that the temporary emergency jurisdiction section would not provide enough protection for children. He specifically stated in his veto message that "temporary emergency jurisdiction has been reserved for extraordinary circumstances and it is extremely difficult to achieve in practice" (See S4138 A- Saland, Veto Message 64).
Domestic Violence Considerations in the UCCJEA
Ironically, most domestic violence advocates believe that in comparison to the current UCCJA and the PKPA, which do not specifically address domestic violence, the UCCJEA is a small improvement. Unlike the UCCJA, the UCCJEA does address domestic violence in limited ways throughout the bill.
Temporary Emergency Jurisdiction
Arguably the most important change implemented by the UCCJEA for domestic violence victims is the expansion of the temporary emergency jurisdiction section of the UCCJEA (S 76-C of New York's proposed law and S 204 of the model UCCJEA).
A court has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child, a sibling, or parent of the child. The length of the order depends on whether or not there is a previous child custody determination and/or whether or not a current child custody proceeding has been commenced in another state. If there are no previous custody determinations and no current custody proceedings in another state, the order issued under the temporary emergency jurisdiction section will become final once that state becomes the child's home state (S 76-C(2) of New York's proposed law and S 204(b) of the model UCCJEA). However, if a current child custody proceeding has been commenced in another state or if there is a current out of state child custody order entitled to enforcement, the court assuming temporary emergency jurisdiction must immediately communicate with the out of state court and resolve the emergency, protect the safety of the parties and the child and determine a period for the duration of the temporary order (S 76-C (3-4) of New York's proposed UCCJEA and S 204(d) of the model UCCJEA).
Unlike the UCCJA's emergency jurisdiction provision (See D.R.L. S 75-d(1)(c)), which grants a court emergency jurisdiction only if the child if physically present in the state and has been abandoned or it is necessary in an emergency to protect the child, the temporary emergency jurisdiction section of the UCCJEA will allow courts to exercise emergency jurisdiction to protect the parent or a sibling of the child as well. Although the Governor expressed concerns that this temporary emergency jurisdiction section will only be utilized in extraordinary circumstances, at least under the UCCJEA, unlike the UCCJA, domestic violence victims have the opportunity to petition a court for emergency jurisdiction to protect themselves and their children from abuse.
The temporary emergency jurisdiction section of the UCCJEA provides another benefit to domestic violence victims as well. VAWA mandates that a court must give full faith and credit to out of state and tribal court orders of protection. According to the commentary after Section 204 in the model act, this would include giving full faith and credit to the findings of fact contained in the order. Thus, when determining whether or not an emergency exists, the court could not re-litigate the factual findings in the protective order (See Uniform Child Custody Jurisdiction and Enforcement Act, With Prefatory Note and Comments, National Conference of Commissioners on Uniform State Laws, 1997).
Declining Jurisdiction
The UCCJEA also addresses domestic violence in the section covering when the court can decline jurisdiction. Similar to the UCCJA, the UCCJEA allows the court to decline jurisdiction because the court is an inconvenient forum or if one of the parties has engaged in unjustifiable conduct. When assessing whether or not the court is an inconvenient forum, one of the factors the court must consider is whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child (See S 76-f(2)(a) of New York's proposed UCCJEA and S 207(1) of the model UCCJEA).
Declining jurisdiction due to unjustifiable conduct aims to penalize parents who remove their children secretively. If the court declines to exercise jurisdiction because of unjustifiable conduct, the court must assess against the party attempting to invoke its jurisdiction unjustly all necessary and reasonable expenses, such as attorney fees, investigative fees, travel expenses etc. (See S 76-g(3) of New York's proposed UCCJEA and S 208 of the model UCCJEA).
UCCJEA Concerns
Although this article outlines some of the improvements for domestic violence victims contained in the UCCJEA, concerns still remain. One such concern involves the previously discussed section addressing the assessment of costs and fees ( S 76-g(3) of New York's proposed UCCJEA and S 208 of the model UCCJEA). Under this section, the court shall award the prevailing party necessary and reasonable expenses incurred on his/her behalf. Many domestic violence advocates expressed concern that this section would prove harmful to victims.
Fortunately, the prefatory comments following Section 208 of the model UCCJEA specifically address this concern. The comments state, "Domestic violence victims shouldn't be charged with unjustifiable conduct for conduct that occurred in the process of fleeing domestic violence even if the conduct is technically illegal. Thus, if a parent flees with a child to escape domestic violence and in the process violates a joint custody decree, the case should not be automatically dismissed under this section. Inquiry must be made into whether the flight was justified under the circumstances of the case. However, an abusive parent who seizes the child and flees to another state to establish jurisdiction has committed unjustifiable conduct and the new state must decline to exercise jurisdiction under this section." (See Uniform Child Custody Jurisdiction and Enforcement Act, National Conference of Commissioners on Uniform State Laws, 1997).
Although the comments are intended for guidance only, they would be helpful for advocates arguing against such an assessment of fees. Also, New York's proposed version of the bill capitalized upon the comment's language by adding clarifying language to this section of its proposed UCCJEA stating "no fees, costs, or expenses shall be assessed against a party who is fleeing an incident or pattern of domestic violence unless the court is convinced by a preponderance of the evidence that such assessment would be clearly appropriate." (See S 76-G(3) of New York's proposed UCCJEA) .
Conclusion
The Governor vetoed the UCCJEA in December of 1999, due to his concerns regarding domestic violence victims and the protection of children. However, after examining some of the provisions in New York's proposed version of the UCCJEA and after speaking with domestic violence advocates, it is clear that the UCCJEA would have been a small improvement for domestic violence victims compared to the current UCCJA.
Future passage of the UCCJEA seems likely. In his veto message, the Governor recommended that proponents of the bill redraft the bill by consulting all affected agencies. It is essential that domestic violence advocates are aware of the differences between the UCCJEA and the current UCCJA so that when the bill is finally passed, the provisions in the UCCJEA benefiting domestic violence victims will be utilized effectively.
End Notes
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