[HOME]

NEW YORK DIVORCE AND FAMILY LAW 

[SITE MAP]

ARTICLES  BY SUBJECT

Adoption

Grandparent Visitation and Non-Parent Visitation

Grounds For Divorce

International Child Abduction

Legal Fee Awards and Awards For Expenses

Litigation and Procedure

Marital Property

Retirement Benefits

Separate Property

Spousal Support

Uniform Child Custody Jurisdiction and Enforcement Act

[HOME]

[SITE MAP]

[ Home | News | Feedback | Search ]

The Uniform Child Custody Jurisdiction Act with Prefatory Note and Comments

UNIFORM CHILD CUSTODY JURISDICTION ACT

Drafted by the

NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS

and by it

APPROVED AND RECOMMENDED FOR ENACTMENT IN ALL THE STATES

at its

ANNUAL CONFERENCE
MEETING IN ITS SEVENTY-SEVENTH YEAR
AT PHILADELPHIA, PENNSYLVANIA
JULY 22-AUGUST 1, 1968

With
Prefatory Note and Comments

Approved by the American Bar Association at its Meeting at
Philadelphia, Pennsylvania
August 7, 1968

The Committee which acted for the National Conference of
Commissioners on Uniform State Laws in preparing the Uniform
Child Custody Jurisdiction Act was as follows:

John W. Wade, Vanderbilt University School of Law, Nashville,
Tennessee 37203, Chairman

William R. Burkett, Box 588, Woodward, Oklahoma 73801

Martin J. Dinkelspiel, 111 Pine Street, 10th Floor, San
Francisco, California 94111

Frederick P. O'Connell, 341 Water Street, Augusta, Maine 04330

Willis E. Sullivan, Box 1466, Boise, Idaho 83701

Harry M. Weakley, Room 324, Capitol Building, Phoenix, Arizona
85007

Richard O. White, P.O. Box 787, Williston, North Dakota 58801
Chairman of Section F, Ex-Officio

Brigitte M. Bodenheimer, University of California School of Law,
Davis, California 95616 Reporter.

Copies of all uniform Acts and other printed matter issued by
the Conference may be obtained from:

National Conference of Commissioners on Uniform State Laws
1155 East Sixtieth Street
Chicago, Illinois 60637


UNIFORM CHILD CUSTODY JURISDICTION ACT

Prefatory Note

There is growing public concern over the fact that thousands of
children are shifted from state to state and from one family to
another every year while their parents or other persons battle
over their custody in the courts of several states. Children of
separated parents may live with their mother, for example, but
one day the father snatches them and brings them to another
state where he petitions a court to award him custody while the
mother starts custody proceedings in her state; or in the case
of illness of the mother the children may be cared for by
grandparents in a third state, and all three parties may fight
over the right to keep the children in several states. These and
many similar situations constantly arise in our mobile society
where family members often are scattered all over the United
States and at times over other countries. A young child may have
been moved to another state repeatedly before the case goes to
court. When a decree has been rendered awarding custody to one
of the parties, this is by no means the end of the child's
migration. It is well known that those who lose a court battle
over custody are often unwilling to accept the judgment of the
court. They will remove the child in an unguarded moment or fail
to return him after a visit and will seek their luck in the
court of a distant state where they hope to find--and often do
find--a more sympathetic ear for their pleas for custody. The
party deprived of the child may then resort to similar tactics
to recover the child and this "game" may continue for years,
with the child thrown back and forth from state to state, never
coming to rest in one single home and in one community.

The harm done to children by these experiences can hardly be
overestimated. It does not require an expert in the behavioral
sciences to know that a child, especially during his early years
and the years of growth, needs security and stability of
environment and a continuity of affection. A child who has never
been given the chance to develop sense of belonging and whose
personal attachments when beginning to form are cruelly
disrupted, may well be crippled for life, to his own lasting
detriment and the detriment of society.

This unfortunate state of affairs has been aided and facilitated
rather than discouraged by the law. There is no statutory law in
this area and the judicial law is so unsettled that it seems to
offer nothing but a "quicksand foundation" to stand on. See
Leflar, American Conflicts Law 585 (1968). See also Clark,
Domestic Relations 32O (1968). There is no certainty as to which
state has jurisdiction when persons seeking custody of a child
approach the courts of several states simultaneously or
successively. There is no certainty as to whether a custody
decree rendered in one state is entitled to recognition and
enforcement in another; nor as to when one state may alter a
custody decree of a sister state.

The judicial trend has been toward permitting custody claimants
to sue in the courts of almost any state, no matter how fleeting
the contact of the child and family was with the particular
state, with little regard to any conflict of law rules. See
Leflar, American Conflicts Law 585-6 (1968) and Leflar, 1967
Annual Survey of American Law, Conflict of Laws 26 (1968). Also,
since the United States Supreme Court has never settled the
question whether the full faith and credit clause of the
Constitution applies to custody decrees, many states have felt
free to modify custody decrees of sister states almost at random
although the theory usually is that there has been a change of
circumstances requiring a custody award to a different person.
Compare People ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct.
903, 91 L. Ed. 1133 (1947); and see Comment, Ford v. Ford: Full
Faith and Credit To Child Custody Decrees? 73 Yale L. J. 134
(1963). Generally speaking, there has been a tendency to over-
emphasize the need for fluidity and modifiability of custody
decrees at the expense of the equal (if not greater) need, from
the standpoint of the child, for stability of custody decisions
once made. Compare Clark, Domestic Relations 326 (1968).

Under this state of the law the courts of the various states
have acted in isolation and at times in competition with each
other; often with disastrous consequences. A court of one state
may have awarded custody to the mother while another state
decreed simultaneously that the child must go to the father. See
Stout v. Pate, 209 Ga. 786, 75 S.E.2d 748 (1953) and Stout v.
Pate, 120 Cal.App.2d 699, 261 P.2d 788 (1953), cert. denied in
both cases 347 US. 968, 74 S.Ct. 744, 776, 98 L. Ed. 1109, 1110
(1954); Moniz v. Moniz, 142 Cal.App.2d 527, 298 P.2d 710 (1956);
and Scharpe v. Scharpe, 77 Ill.App.2d 295, 222 N.E.2d 340
(1966). In situations like this the litigants do not know which
court to obey. They may face punishment for contempt of court
and perhaps criminal charges for child stealing in one state
when complying with the decree of the other. Also, a custody
decree made in one state one year is often overturned in another
jurisdiction the next year or some years later and the child is
handed over to another family, to be repeated as long as the
feud continues. See Com. ex rel. Thomas v. Gillard 203 Pa.Super.
95, 198 A.2d 377 (1964); In Re Guardianship of Rodgers, 100
Ariz. 269, 413 P.2d 774 (1966); Berlin v Berlin 239 Md. 52, 210
A.2d 380 (1965); Berlin v. Berlin, 21 N.Y.2d 371, 235 N.E.2d 109
(1967), cert. denied 37 L.W. 3123 (1968); and Batchelor v.
Fulcher, 415 S.W.2d 828 (Ky. 1967).

In this confused legal situation the person who has possession
of the child has an enormous tactical advantage. Physical
presence of the child opens the doors of many courts to the
petitions and often assures him of a decision in his favor. It
is not surprising then that custody claimants tend to take the
law into their own hands , that they resort to self-help in the
form of child stealing, kidnapping, or various other schemes to
gain possession of the child. The irony is that persons who are
good, law-abiding citizens are often driven into these tactics
against their inclinations; and that lawyers who are reluctant
to advise the use of maneuver of doubtful legality may place
their clients at a decided disadvantage.

To remedy this intolerable state of affairs where self-help and
the rule of "seize-and-run" prevail rather than the orderly
processes of the law, uniform legislation has been urged in
recent years to bring about a fair measure of interstate
stability in custody awards. See Ratner, Child Custody in a
Federal System, 62 Mich.L.Rev. 795 (1964); Ratner, Legislative
Resolution of the Interstate Child Custody Problem: A Reply to
Professor Currie and a Proposed Uniform Act, 38 S. Cal.L.Rev.
183 (1965); and Ehrenzweig, The Interstate Child and Uniform
Legislation: A Plea for Extra-Litigious Proceedings, 64
Mich.L.Rev. 1 (1965). In drafting this Act, the National
Conference of Commissioners has drawn heavily on the work of
these authors and has consulted with other leading authorities
in the field. The American Bar Association has taken an active
part in furthering the project.

The Act is designed to bring some semblance of order into the
existing chaos. It limits custody jurisdiction to the state
where the child has his home or where there are other strong
contacts with the child and his family. See Section 3. It
provides for the recognition and enforcement of out-of-state
custody decrees in many instances. See Sections 13 and 15.
Jurisdiction to modify decrees of other states is limited by
giving a jurisdictional preference to the prior court under
certain conditions. See Section 14. Access to a court may be
denied to petitioners who have engaged in child snatching or
similar practices. See Section 8. Also, the Act opens up direct
lines of communication between courts of different states to
prevent jurisdictional conflict and bring about interstate
judicial assistance in custody cases.

The Act stresses the importance of the personal appearance
before the court of non-residents who claim custody, and of the
child himself, and provides for the payment of travel expenses
for this purpose. See Section 11. Further provisions insure
that the judge receive necessary out-of-state information with
the assistance of courts in other states. See Sections 17
through 22.

Underlying the entire Act is the ides that to avoid the
jurisdictional conflicts and confusions which have done serious
harm to innumerable children, a court in one state must assume
major responsibility to determine who is to have custody of a
particular child; that this court must reach out for the help of
courts in other states in order to arrive at a fully informed
judgment which transcends state lines and considers all
claimants, residents and nonresidents, on an equal basis and
from the standpoint of the welfare of the child. If this can be
achieved, it will be less important which court exercises
jurisdiction but that courts of the several states involved act
in partnership to bring about the best possible solution for a
child's future.

The Act is not a reciprocal law. It can be put into full
operation by each individual state regardless of enactment of
other states. But its full benefits will not be reaped until a
large number of states have enacted it, and until the courts,
perhaps aided by regional or national conferences, have come to
develop a new, truly "inter-state" approach to child custody
litigation. The general policies of the Act and some of its
specific provisions apply to international custody cases.

UNIFORM CHILD CUSTODY JURISDICTION ACT

SECTION 1. [Purposes of Act; Construction of Provisions]

(a) The general purposes of this Act are to:

(1) avoid jurisdictional competition and conflict with courts of
other states in matters of child custody which have in the past
resulted in the shifting of children from state to state with
harmful effects on their well-being;

(2) promote cooperation with the courts of other states to the
end that a custody decree is rendered in that state which can
best decide the case in the interest of the child;

(3) assure that litigation concerning the custody of a child
take place ordinarily in the state with which the child and his
family have the closest connection and where significant
evidence concerning his care, protection, training, and personal
relationships is most readily available, and that courts of this
state decline the exercise of jurisdiction when the child and
his family have a closer connection with another state;

(4) discourage continuing controversies over child custody in
the interest of greater stability of home environment and of
secure family relationships for the child;

(5) deter abductions and other unilateral removal of children
undertaken to obtain custody swards;

(6) avoid re-litigation of custody decisions of other state in
this state insofar as feasible;

(7) facilitate the enforcement of custody decrees of other
states;

(8) promote and expand the exchange of information and other
forms of mutual assistance between the courts of this state and
those of other states concerned with the same child; and

(9) make uniform the law of those states which enact it.

(b) This Act shall be construed to promote the general purposes
stated in this section.

COMMENT

Because this uniform law breaks new ground not previously
covered by legislation, its purpose is stated in some detail.
Each section must be read and applied with these purposes in
mind.

SECTION 2. [Definitions] As used in this Act:

(1) "contestant" means a person, including a parent, who claims
a right to custody or visitation rights with respect to a child;

(2) "custody determination" means a court decision and court
orders and instructions providing for the custody of a child,
including visitation rights; it does not include a decision
relating to child support or any other monetary obligation of
any person;

(3) "custody proceeding" includes proceedings in which a custody
determination is one of several issues, such as an action for
divorce or separation, and includes child neglect and dependency
proceedings;

(4) "decree" or "custody decree" means a custody determination
contained in a judicial decree or order made in a custody
proceeding, and includes an initial decree and a modification
decree;

(5) "home state" means the state in which the child immediate!y
preceding the time involved lived with his parents, a parent, or
aperson acting as parent, for at least 6 consecutive months, and
in the case of a child less than 6 months old the state in which
the child lived from birth with any of the persons mentioned.
Periods of temporary absence of any of the named persons are
counted as part of the 6-month or other period;

(6) "initial decree" means the first custody decree concerning a
particular child;

(7) "modification decree" means a custody decree which modifies
or replaces a prior decree, whether made by the court which
rendered the prior decree or by another court;

(8) "physical custody" means actual possession and control of a
child;

(9) "person acting as parent" means a person, other than a
parent, who has physical custody of a child and who has either
been awarded custody by a court or claims a right to custody;
and

(10) "state" means any state, territory, or possession of the
United States, the Commonwealth of Puerto Rico, and the District
of Columbia.

COMMENT

Subsection (3) indicates that "custody proceeding" is to be
understood in a broad sense. The term covers habeas corpus
actions, guardianship petitions, and other proceedings available
under general state law to determine custody. See Clark,
Domestic Relations 576-582 (1968). Other definitions are
explained, if necessary, in the comments to the sections which
use the terms defined.

SECTION 3 [Jurisdiction]

(a) A court of this State which is competent to deci