Child Custody and The UCCJEA
As hard as we may try, we cannot predict the future. We base decisions on what we know to be true today, and what we expect to be true tomorrow, next month, and even years ahead. When child custody orders are issued, we necessarily take a snapshot of the current circumstances and combine that knowledge with a projection of what is likely to occur in the future. Because life’s only constant is change, the courts will consider modifying child custody orders when a continuing change in circumstances necessitates new orders. At the core of every custody order — whether it be the original order or a modification — is the court’s jurisdiction.
Child Custody and the UCCJEA: Uniform Child Custody Jurisdiction and Enforcement Act
Jurisdiction is the court’s power and authority to decide the child custody case. A court cannot render an enforceable decision if it lacks jurisdiction. An Arizona court with proper jurisdiction generally will not modify another state’s child custody order unless that state has either lost jurisdiction, or has declined to exercise jurisdiction.
Along with every state but Massachusetts and Vermont, Arizona adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to provide consistency in custody matters within the state and between the states. The UCCJEA specifically addresses jurisdiction.
There are four ways to establish our court’s jurisdiction over a child custody matter under the UCCJEA. The Superior Court can exercise jurisdiction when one of the following four circumstances exist:
- Arizona is the child’s “home state” on the day the proceeding is initiated; or if the child is now absent, Arizona was the child’s home state during the six months before the action was filed and one or both parents, or a person acting as a parent in loco parentis, continues to live here. Under the UCCJEA, the child’s “home state” is essentially the state where the child has lived with a parent for at least six consecutive months before the custody proceeding commenced
- Another state lacks jurisdiction; or the home state’s court declines jurisdiction in the best interests of the child, and: 1) the child and one or both parents (or person acting in loco parentis) have a “significant connection” with Arizona, and 2) information and evidence regarding the child’s “care, protection, training and personal relationships” is available in this state
- All other courts who could exercise jurisdiction have declined to do so and Arizona is the “more appropriate forum.” This would include a situation where the child is physically present in Arizona and has been abandoned, or some other emergency situation exists
- No other state’s court has accepted or assumed jurisdiction and it is in the best interests of the child for Arizona to accept jurisdiction over the custody matter
There are also limitations on Arizona’s jurisdiction under the UCCJEA. Assuming the exercise of jurisdiction by another state is authorized under its version of the UCCJEA, our court will refuse jurisdiction when the custody case is already pending in another state.
Also, when the petitioning Arizona parent has violated another state’s custody order, our court will decline jurisdiction unless the child’s best interests demand that our state accept jurisdiction despite that parent’s violation of the out-of-state court’s order.
Our family court also has discretion to refuse jurisdiction when the party to the initial court action took the child from another state wrongfully, or when Arizona is an inconvenient forum for the custody action.
Custody Modifications and Continuing Jurisdiction
To consider modification of a custody order, the family court judge must first establish its jurisdiction over the parties. In some circumstances, the court may exercise emergency jurisdiction to protect a child, such as the abandonment of a child in the state. Most cases do not require emergency jurisdictional measures, however. More commonly, when the divorce is final and a custody order is in effect the court still has “continuing jurisdiction” over custody. That is, the court’s jurisdiction continues throughout the child’s minority or until emancipated, unless some change in circumstances ends that jurisdiction.
There are at least two circumstances that will terminate the court’s continuing custody jurisdiction under A.R.S. § 25-1032:
- The child and a parent, or a person acting in loco parentis, no longer have any significant connection with the state of Arizona and, furthermore, substantial evidence and information about the child’s care and society are no longer available here in this state
- A judge, either in Arizona or some other state, establishes that the child, the parents, or the person acting in loco parentis, are no longer residents of this state
Parenting plans, custody modifications, and jurisdictional issues can be complex matters, made more so when there are heightened tensions between the parents. And as we’ve learned over the years, child custody disputes are typically the most contentious ones. The best course of action is to discuss these concerns with your lawyer, and avoid violating any out-of-state court order.