The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies to interstate and international custody disputes.1  The purpose of the UCCJEA is to avoid conflict and require cooperation and exchange of information among states regarding child custody matters. A court must have subject matter jurisdiction under the UCCJEA to make an initial child custody determination. The UCCJEA has been adopted by all fifty states. The UCCJEA also governs a court’s continuing jurisdiction over the custody dispute and jurisdiction to modify custody judgments.

The UCCJEA applies to all “child custody proceedings” in which legal custody, physical custody, or visitation with respect to a child is at issue. A “child custody proceeding includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights and protection from family violence, in which the custody or visitation issue may appear.”2  A “child custody proceeding” does not include adoption, authorization for medical care, juvenile delinquency, contractual emancipation, or Hague Convention enforcement actions.3

A child custody proceeding that pertains to an Indian child, as defined in the Indian Child Welfare Act, is not subject to the UCCJEA to the extent that it is governed by the Indian Child Welfare Act.4  The federal Parental Kidnapping Prevention Act governs full faith and credit for custody determinations and will preempt the UCCJEA where variances exist.5

• 1La. R.S. 13:1801, et seq.
• 2La. R.S. 13:1802(4).
• 3Id.
• 4La. R.S. 13:1804.
• 528 U.S.C. § 1738A.

Both the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)1  and the federal Parental Kidnapping Prevention Act (PKPA)2  are legislative responses to jurisdictional problems posed by interstate child custody disputes. Both acts govern interstate child custody disputes. A custody judgment is only enforceable if the issuing court has jurisdiction under state law and the UCCJEA and complied with the PKPA.3  Conceptually, the UCCJEA is a jurisdictional statute that seeks procedurally to implement the PKPA, which is the federal full faith and credit law for child custody determinations.

The PKPA provides for the home state to have exclusive jurisdiction and for “continuing jurisdiction” by a court that made a child custody determination consistent with its provisions.4  The UCCJEA provides for exclusive jurisdiction by the home state and exclusive “continuing jurisdiction” by the court that made an initial child custody determination consistent with the UCCJEA.5

• 1La. R.S. 13:1801, et seq.
• 228 U.S.C. § 1738A.
• 3See La. R.S. 13:1806.
• 428 U.S.C. § 1738A(c)(2)(E). Only a prior action in an emergency jurisdiction state, which was otherwise consistent with the PKPA, would prime the home state. The PKPA definition of emergency jurisdiction supersedes any state law definition of emergency jurisdiction. Jones v. Jones, 456 So. 2d 1109, 1112 (Ala. Civ. App. 1984).
• 5La. R.S. 13:1813–1814.

Personal jurisdiction is not required for the adjudication of child custody.1  The concept of personal jurisdiction is irrelevant to custody disputes. A court may decide custody without personal jurisdiction over a defendant. UCCJEA child custody jurisdiction is in the nature of subject matter jurisdiction, which can’t be waived. The lack of UCCJEA subject matter jurisdiction can’t be waived by an appearance.

• 1La. R.S. 13:1813(C). Note that claims other than divorce and custody may also require “minimum contacts” with Louisiana in order for Louisiana courts to have personal jurisdiction. Atkins v. Atkins, 588 So. 2d 407 (La. App. 2 Cir. 1991).

The UCCJEA does not prescribe a special notice procedure for interstate custody disputes. Rather, it incorporates the Louisiana law on notice and service of process for non-residents or the law of the state where the non-resident lives.1  As a result, non-residents need to be notified and served under Louisiana’s Long-Arm Statute,2  which generally involves service by certified mail and 30 days’ notice before a hearing on a custody motion or rule except for family violence protective order actions under La. R.S. 46:2131, et seq.

• 1La. R.S. 13:1808.
• 2La. R.S. 13:3204–3205.

La. R.S. 13:1813(A) provides the exclusive jurisdictional basis for a Louisiana court to make an initial child custody determination. Under La. R.S. 13:1813(A)(1), the child’s home state will have exclusive jurisdiction to make an initial child custody determination. Thus, the home state trumps all other states, even if the custody suit in the other state was filed first.

The home state is the state in which the child lived with a parent or a “person acting as a parent” for at least 6 consecutive months prior to the commencement of a child custody proceeding. Both the UCCJEA and Louisiana law define commencement as the filing of the first pleading in a proceeding.1  A “temporary absence” of the child, parent, or person acting as a parent when they are away from the home state does not take away from the computation of this 6 consecutive month period.2  In case of a child under 6 months old, home state means the state in which the child lived from birth with a parent or person acting as a parent.3  The Louisiana UCCJEA further extends this “temporary absence” window when the parent or person acting as a parent who has had to evacuate with the child due to a disaster and is unable to return to Louisiana for an extended period. Louisiana would still be considered the home state if they had lived in Louisiana for at least 12 consecutive months prior to the initial custody proceeding.4

The first step in any interstate custody dispute is to determine the home state, if any. Most cases should have a home state, and exclusive jurisdiction will rest with the home state. The home state will have initial jurisdiction, which will exist even if a custody determination has been made in another state.

The determination of home state status should be relatively easy. Each litigant’s first pleading should contain an affidavit that discloses facts relevant to the determination of UCCJEA jurisdiction. Possible issues may arise for cases that involve a child under 6 months old or a child’s temporary absences from a state. If a child was born in state A, lived there for 2 months with a parent, and then relocated to state B for 3 months, state A would be the home state because state A is the only state where the child lived continuously from birth.

While the UCCJEA does not define “temporary absence,” it can be argued that a temporary absence that is greater than 6 months (unless there is a disaster exception or a clearly defined reason for being away from the home state such as vacation, school, etc.) would divest Louisiana from being considered the home state. Clearly, the UCCJEA permits home state jurisdiction when the “temporary absence” is within the 6-month window of the custody proceeding. Other states’ courts have looked at whether a state was the home state at any time within the prior 6 months. Thus, for example, if the custody suit was filed on July 1, the issue would be whether the state was the “home state” on the prior January 1, when the temporary absence commenced.

• 1La. R.S. 13:1802(5).
• 2La. RS. 13:1813.
• 3La. R.S. 13:1802(7).
• 4Id.

If there is no home state or if the home state has declined jurisdiction under La. R.S. 13:1819 or 1820, you must determine which state had “significant connections” jurisdiction under La. R.S. 13:1813(A)(2). “Significant connections” jurisdiction will not provide a court with initial jurisdiction under the UCCJEA if there is a home state.

For “significant connections” jurisdiction to exist, (1) the child and the child’s parents or the child and at least one parent or person acting as a parent must have a significant connection with the state other than mere physical presence and (2) substantial evidence must be available in the state on the child’s care, protection, training, and personal relationships. The child’s physical presence is not required for significant connections jurisdiction. The focus is on which state has substantial evidence as to the child’s care, protection, training, and relationships. If both states have “significant connections” jurisdiction, UCCJEA jurisdiction will lie with the first court in which a custody suit was filed.

If all courts having jurisdiction under the UCCJEA have declined jurisdiction because Louisiana is the more appropriate forum, Louisiana could have UCCJEA jurisdiction under La. R.S. 13:1803(A)(3).

The final jurisdictional basis is “default” or “vacuum” jurisdiction under La. R.S. 13:1813(A)(4). It exists when no court of any other state would have jurisdiction under the other bases for UCCJEA, i.e., home state, significant connections, or declination in favor of Louisiana.

Temporary emergency jurisdiction exists “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 because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.”1  Because the statute grants emergency jurisdiction in cases of abuse, it clarifies a Louisiana court’s authority to issue temporary orders to protect family violence victims who may have fled to Louisiana.

If a prior custody order exists, the judge must confer with the other state’s judge.2  Then, the court with temporary emergency jurisdiction must specify a reasonable time limit for the plaintiff to obtain an order from the state with proper La. R.S. 13:1813–1815 jurisdiction. The temporary emergency order will remain in effect until an order is obtained from the other state or the time limit expires.3

There is a mandatory duty for a Louisiana court to communicate with the other state’s judge if (1) the Louisiana court has been asked to make a custody determination under emergency jurisdiction and it is informed that a child custody proceeding or order exists in a state having La. R.S. 13:1813–1815 jurisdiction; or (2) if the Louisiana court has La. R.S. 13:1813–1815 jurisdiction and it is informed that another state has exercised emergency jurisdiction. The purpose of the communication is to resolve the jurisdiction, protect the safety of the parties and child, and determine the duration of the temporary custody order.4

• 1 La. R.S. 13:1816(A).
• 2La. R.S. 13:1816(D).
• 3See La. R.S. 13:1816(C).
• 4See La. R.S. 13:1816(D).

How does the court resolve jurisdiction when there is a proceeding in another state? Except for temporary emergency jurisdiction cases under La. R.S. 13:1816, the Louisiana court must examine the court documents and the parties’ La. R.S. 13:1821 affidavits to determine UCCJEA subject matter jurisdiction before hearing a custody case.1  This creates an independent, affirmative duty for the court to review and determine jurisdiction. If the Louisiana court finds that the other state’s court had UCCJEA jurisdiction, the Louisiana court must stay the Louisiana proceedings and communicate with the other state’s court.2  If the other state with UCCJEA jurisdiction does not determine that Louisiana is the more appropriate forum, the Louisiana court must dismiss the Louisiana proceeding.3

• 1La. R.S. 13:1818.
• 2Id.
• 3Id.

Communications with another state’s court are mandatory only when (1) there are simultaneous custody proceedings; (2) a Louisiana court exercising temporary emergency jurisdiction under La. R.S. 13:1816 learns that a proceeding exists in another state; or (3) a Louisiana court with non-emergency UCCJEA jurisdiction learns that another state has assumed temporary emergency jurisdiction. A Louisiana court may communicate with another state on other jurisdictional matters, but it is not required to do so. As a practical matter, without communicating with the other court, it would be difficult for a court to evaluate the seventh and eighth factors of the analysis required by La. R.S. 13:1819 for evaluating a motion to decline jurisdiction on inconvenient forum grounds.

Under La. R.S. 13:1819, a Louisiana court may decline its UCCJEA jurisdiction at any time if it determines that it is an inconvenient forum and that another state is a more appropriate forum.1  A motion to decline may be raised at any time by any party, by the court on its own motion, or at the request of another court.2  Only the court with UCCJEA jurisdiction may decide if it is an inconvenient forum.3

The first inquiry under La. R.S. 13:1819 is whether it is appropriate for the court of another state to exercise jurisdiction.4  The court must allow the parties to submit “information” on this issue and shall consider 8 specific statutory factors.5  The use of “information” instead of “evidence” suggests that this issue may be decided on briefs, affidavits, and other information. There are few appellate opinions on this issue. Like any other factor analysis, it is fact intensive. Be prepared to plea with specificity the facts supporting each factor in your favor and provide evidentiary support when available.

Often, factors #1 and #2, domestic violence and the length of time that the child has resided outside of Louisiana, will be the major factors in the La. R.S. 13:1819 analysis. A Louisiana court with UCCJEA jurisdiction may decline in favor of the victim’s refuge state. The leading case on the domestic violence factor for an inconvenient forum analysis is Stoneman v. Drollinger.6

The UCCJEA does not require a Louisiana court with proper UCCJEA jurisdiction to communicate with the court of another state before it decides to decline jurisdiction to that court as a more appropriate forum.7  However, if the Louisiana court communicates with the other state’s court on a substantive matter, it must make a record of the communication.8  Furthermore, the parties must be informed of the communication and granted access to the record of the communication.9  Finally, if the parties are not able to participate in the inter-court communications, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.10

Under La. R.S. 13:1820, a Louisiana court must decline jurisdiction (except in limited circumstances) if the person seeking to invoke its jurisdiction has engaged in “unjustifiable conduct.” Unjustifiable conduct may include wrongful removal, retention, or concealment of the child. How does La. R.S. 13:1820 apply to a domestic violence victim who seeks refuge in Louisiana, possibly in violation of a custody decree? La. R.S 13:1820 says that mandatory declination of jurisdiction does not apply where domestic violence victim invoked temporary jurisdiction pursuant to La. R.S. 13:1816. In addition, the comments to § 208 of the model UCCJEA state that a domestic violence victim’s flight to another state in violation of a custody decree should not result in that state’s automatic dismissal of the victim’s custody suit. Rather, an inquiry should be made into whether the flight was justified under the circumstances.

• 1La. R.S. 13:1819(A).
• 2Id.
• 3Id.
• 4La. R.S. 13:1819(B).
• 5Id.
• 664 P.3d 997 (Mont. 2003).
• 7For additional discussion, see Section 4.10.11.
• 8La. R.S. 13:1810.
• 9Id.
• 10Id.

La. R.S. 13:1814 provides for exclusive continuing jurisdiction for the court that made an initial custody determination consistent with the jurisdictional rules of La. R.S. 13:1813–1815. This is a bright line test that should make it easy for courts to decide if continuing jurisdiction still exists.

If Louisiana had initial jurisdiction, its exclusive continuing jurisdiction lasts until a Louisiana court decides that neither the child nor the parent(s) or person(s) acting as parent(s) have a significant connection with Louisiana or the foreign state determines that the child, parent(s), and person(s) acting as parent(s) no longer reside in Louisiana. Similarly, Louisiana can’t assume jurisdiction if another state had initial jurisdiction consistent with La. R.S. 13:1813–1815 unless the other state declines jurisdiction or the Louisiana court finds that the child, parent(s), and person(s) acting as parent(s) no longer reside in the state that had exclusive continuing jurisdiction under the UCCJEA.

La. R.S. 13:1815 significantly restricts when a court may modify a custody determination made by another state. It prohibits Louisiana from assuming jurisdiction to modify merely because Louisiana is the home state at the time of the motion to modify is filed.

La. R.S. 13:1815 provides that, except as authorized in La. R.S. 13:1816 (temporary emergency jurisdiction), a Louisiana court may not modify a custody determination made by another state unless a Louisiana court has home state or significant connections jurisdiction and either (1) the court of the other state determines that it no longer has exclusive, continuing jurisdiction or that a Louisiana court would be a more convenient forum; or (2) a Louisiana court or the other state’s court determines that the child, parent(s), and person(s) acting as parent(s) no longer reside in the other state.

The UCCJEA does not require a foreign decree to be registered in order to be enforced. La. R.S. 13:1827 states that the other state’s decree may be registered in a Louisiana court by sending the Louisiana court a “letter or other document requesting registration” along with two copies (one must be certified) of the foreign judgment and other information. On receipt of the documents, the Louisiana court is supposed to file the foreign judgment and serve notice on the opposing party advising that party that the foreign judgment is immediately enforceable as a Louisiana judgment and that the party has 20 days to request a hearing to contest the validity of the registered foreign judgment.

The grounds to contest the foreign judgment are (1) lack of UCCJEA jurisdiction; (2) vacatur, stay, or modification of the foreign judgment by a court with UCCJEA jurisdiction; and (3) lack of notice of the foreign court proceeding in accordance with the standards of La. R.S. 13:1808. No other defenses are allowed. La. R.S. 13:1828 further provides that a Louisiana court may grant any relief available under Louisiana law to enforce a registered child custody determination made by a court of another state.

La. R.S. 13:1827 speaks of simply filing a “letter or other document” to register and confirm a foreign custody judgment or order. However, La. R.S. 13:1830 requires a verified petition for “expedited” enforcement of a foreign custody judgment or order when a party seeks immediate physical custody pursuant to the foreign custody decree. Interestingly, La. R.S. 13:1830(C) states that the hearing shall be heard on the next judicial day after service of the order directing the respondent to appear at a hearing.

La. R.S. 13:1835 mandates that a Louisiana court accord full faith and credit or enforce another state’s custody order where jurisdiction was exercised in “substantial conformity” or is consistent with the UCCJEA. La. R.S. 13:1805 allows for international application of the UCCJEA and treats the foreign country as if it were a state of the USA.1

Appeals from a final order in a proceeding to enforce a foreign custody determination must be expedited, and the Louisiana trial court is prohibited from staying an order enforcing the child custody determination pending appeal. Only the appellate court may issue a stay.2  Also, the U.S. Supreme Court has ruled that the PKPA (and thus, the UCCJEA) do not create an implied cause of action in federal court.3  Rather, the federal full faith and credit clause must be enforced in the state courts.

• 1See Guzman v. Sartin, 2009-1677 (La. App. 1 Cir. 12/23/09), 31 So. 3d 426.
• 2See La. R.S. 13:1836.
• 3See Thompson v. Thompson, 484 U.S. 174 (1988).

La. R.S. 13:1834 strengthens and expands the prevailing party’s claims for attorney fees and other expenses in an UCCJEA enforcement proceeding. La. R.S. 13:1834 mandates the award of attorney fees unless the party from whom fees are sought establishes that the award would be “clearly inappropriate.” The comments to the model UCCJEA state that attorney fees may be inappropriate if an award would cause a parent and child to seek public assistance. The same rule for attorney fees and costs applies under La. R.S. 13:1820 for cases that are dismissed or stayed because a court declined jurisdiction because of a party’s unjustifiable conduct, e.g., removing the child to Louisiana to avoid the home state’s jurisdiction.
     
A wonderful resource for interstate custody questions is the Legal Resource Center on Violence Against Women, which provides technical assistance and training on interstate custody issues, including the UCCJEA.1

• 1Legal Resource Ctr. on Violence Against Women.