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International Child Custody, Jurisdiction, and UCCJEA

The Uniform Child Custody, Jurisdiction, and Enforcement Act (UCCJEA) is a uniform state law approved in 1997 to govern state courts' jurisdiction to make and modify child custody determinations. Such determinations include custody and visitation or parenting time, but not child support or adoption.

"Jurisdiction" refers to the power and authority a court has to hear and decide a legal matter. In the past, two states, or a state and a foreign country, might both have had jurisdiction to address a child custody matter. This "concurrent jurisdiction" created a great deal of uncertainty for parents, children, and often the courts themselves. A series of laws has attempted to deal with this issue, the most recent of which is the UCCJEA.

The UCCJEA is not a custody statute itself, but it offers greater clarity as to which state (or country) has jurisdiction over a custody case. Preference is given to a child's home state, where the child has lived for at least six months before the beginning of the custody case. If there is no home state under the statute's definition, jurisdiction may exist in a state to which the child has significant connections. In an emergency, such as where a parent flees one jurisdiction with the child because of domestic violence, the state to which the parent has fled to may have jurisdiction, even though it is not the child's home state and the child has no significant connections there. A state with emergency jurisdiction can make only a temporary order under the UCCJEA.

UCCJEA and the Hague Convention on the Civil Aspects of International Child Abduction

Member countries to the Hague Convention on the Civil Aspects of International Child Abduction ("Convention") have agreed that children who are taken from their country of habitual residence in violation of custody rights must be returned immediately. Not all countries are members of the Convention. The Convention is given effect in the United States through the International Child Abduction Remedies Act (ICARA). ICARA's goal is to provide a uniform domestic process to bring about swift repatriation of children abducted by a non-custodial parent.

Defenses to a case seeking repatriation include a child who does not wish to be returned, and is of sufficient age to have his or her views considered; more than one year having elapsed since wrongful removal, with the result that the child is settled in the new location; and a risk of "grave harm" to the child if he or she is returned to the parent from which taken.

The UCCJEA makes specific provision for the enforcement of return orders under the Hague Convention on the Civil Aspects of International Child Abduction. It also authorizes public officials to locate and secure the return of wrongfully-removed children in these cases. The UCCJEA contains provisions that make clear when foreign custody determinations (whether or not from countries that are signatories to the Hague Convention on the Civil Aspects of International Child Abduction) must be enforced in the United States, and when a foreign court has continuing custody jurisdiction.

How the UCCJEA Enforcement Provisions Protect Children

Certain enforcement provisions of the UCCJEA are especially helpful in protecting children in the United States who are at risk of abduction to a foreign country by a parent. The statute provides for expedited enforcement of custody determinations. If a child is at risk of immediate physical harm or abduction, this expedited process may be used together with a warrant that directs law enforcement officers to take physical custody of the child. This can prevent harm that would be difficult or impossible to reverse.

In order to issue such a warrant, the court must take testimony from the petitioner (person seeking the warrant) or another witness. If necessary, this testimony may be taken by telephone or another means. Upon a finding that the child is at imminent risk of physical harm, the court issues the warrant, the child is secured, and the respondent (usually the child's other parent) is then immediately served with the petition, warrant, and order. A hearing on the petition must take place on the next judicial day unless, for some reason, this is impossible.

The body of laws that work together to protect children in custody matters, especially international custody matters, are complex. If you have concerns about protecting your child or your custody rights in an order from another state or country, contact Howard County, MD immigration lawyer Van T. Doan without delay.