Custody Disputes Between Spouses of Different States - the UCCJEA

Custody Disputes between Parents of Different States - understanding the UCCJEA

The UCCJEA stands for the “Uniform Child Custody Jurisdiction and Enforcement Act”. It was adopted by Georgia in 2001. The law is principally codified in O.C.G.A. sections 19-9-40 through 19-9-51 and 19-9-61 through 19-9-70. It is understood that all states, other than possibly Massachusetts, have adopted the law.

There are some minor variations in the proposed uniform language state to state, but broadly, the law sets up an agreed framework between the states to determine the proper state - known as the “Home State” - to hear and rule upon an initial custody dispute between spouses who are residents of different states or citizens of different countries and further provides agreed rules concerning the continuing jurisdiction of the court that has made a final custody ruling to hear petitions for modification. The overall policy is to prevent inconsistent, overlapping custody orders, facilitate communication between judges in different states, and provide a simple mechanism for registering custody orders such that they will receive full faith and credit in every state. Do not hesitate to contact Atlanta Child Custody Dispute Attorney Russell Hippe if you, or someone you know, are going through a custody dispute between different state spouses.

Initiating the Custody Petition / Determining the “Home State”

Boiled down, the UCCJEA essentially provides that a custody determination must be made by the state which is the “Home State” of the child on the date the petition is filed.

O.C.G.A. section 19-9-41(7) defines the “Home State” as follows:

“Home state” means 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.

In any divorce petition dealing with an initial custody determination concerning the custody of children and where the defendant is living outside of Georgia, in another state or in another country even, the petition must set forth that Georgia is the “Home State” under the UCCJEA, set forth the facts in support of this claim, and note that there is not another state with a conflicting jurisdictional claim, and that there has not been a previous custody determination by any other court in Georgia or another state.

What Happens if the Opposing Spouse Claims His or Her State is the Home State? – The Battle of the States / Judges:

If you think this might happen, it is best to get your petition filed asap. However, the UCCJEA provides a framework to address a fight over which court is the “Home State”. If there is a dispute, each state will conduct it’s own hearing and inquiry and make a determination if they believe they are the “Home State”. If each state decides they are the “Home State”, the judges will usually have a judicial conference to decide who is right. Effort will be made to ensure there is only one controlling custody order. Either state can back down if it determines it is a “less convenient forum”.

O.C.G.A. section 19-9-67 provides:

(a) A court of this state which has jurisdiction under this article to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court's own motion, or request of another court.

(b) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:

(1) Whether family violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(2) The length of time the child has resided outside this state;

(3) The distance between the court in this state and the court in the state that would assume jurisdiction;

(4) The relative financial circumstances of the parties;

(5) Any agreement of the parties as to which state should assume jurisdiction;

(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

(8) The familiarity of the court of each state with the facts and issues in the pending litigation.

(c) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.

However, Georgia trial courts should not be overly differential. Bellew v. Larese, 288 Ga. 495 (2011) provides a good illustration. There, the parties (Bellew a U.S. Citizen, Larese an Italian national) were married in Italy in 2002. The parties had a child in Italy who had dual citizenship. The parties moved to Athens, Georgia in August of 2004. Larese traveled to Italy in the summer of 2007 with the child and never returned. She filed for divorce in Italy in August of 2007, seeking to stay in Italy with the child. Bellew filed for divorce in Athens / Clarke County in September of 2007, a month and a half later, seeking custody and the return of the child. Both the Georgia trial court (awarding custody to Bellew) and the Italian Court (awarding custody to Larese) entered conflicting initial custody rulings. Larese moved the Georgia trial court to communicate with the Italian court.

Ultimately, the Georgia trial court deferred to the Italian court, vacating its initial custody award in favor of Larese. The Georgia Supreme Court held this was error as, under the UCCJEA, Georgia, not the province in Italy, was the “Home State”. The child had lived in Athens / Clarke Co. for 2 years prior to being taken to Italy in the summer of 2007, with Bellew’s expectation the wife and child would return. The trial court’s decision to vacate its initial custody ruling, deferring to the Italian court, was reversed. (It is unknown how, as a practical matter, this type of conflict with a foreign country is resolved if the child remains in Italy and the Italian court does not defer.)

If you are a Georgia resident and dealing with a UCCJEA battle over the proper “Home State” in a custody fight, your options are either to concede and try your custody case in another state (which is usually never smart strategy if you are seeking primary custody) or enter a limited appearance in the other state (you will have to hire a lawyer in this state as well, unfortunately) and move the other state to stay its custody proceedings in favor of Georgia.

Temporary Emergency Jurisdiction under the UCCJEA:

Even if Georgia is not the “Home State”, in certain emergency situations a Georgia Court may exercise jurisdiction and make a temporary custody ruling.

O.C.G.A. section 19-9-64(a) provides:

“A court of this state 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 because the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse.”

If there is no previous child custody ruling from another state, and a custody action has not been started in the “Home State”, this emergency order will remain in effect until superseded by an order from the “Home State”. However, the emergency order can become final if Georgia becomes the “Home State” and is converted to a final custody order by petition.