CHILD CUSTODY JURISDICTION IN VIRGINIA:
THE INTRICACIES AND SUBTLETIES

Is it possible for a Virginia court to have jurisdiction over children who have never been in Virginia in their lives? It seems simple, but a look at our tangled statutory picture shows that it is not quite that simple. Fallacious arguments are always being thrown around, and it is good to know what some of the answers are -- even if they are not the ones you thought they were.

In divorce cases, custody is handled under Title 20. In all other custody cases, the juvenile court has jurisdiction under Code §16.1-241.

Suppose a parent in Virginia files in juvenile court for custody of children who have lived in an overseas country for many years, and have never been in Virginia in their lives. Is there any basis whatever for this Virginia assertion of child custody jurisdiction?

In jurisdictional contests between American states, the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. §1738A, applies. It provides, of course, that child custody jurisdiction is in the home state, and can only be in other states if there is no home state. Thus it is very difficult to find a case in which jurisdiction over a child can be supplied by "significant connections" with him.

In cases involving foreign countries, however, the PKPA does not apply, and only the UCCJA applies. Some litigants like to propose that if the child is in a foreign country, the jurisdictional section of the UCCJA relating to "no other state" having jurisdiction applies and gives Virginia the kind of "default" or "vacuum" jurisdiction that is provided for the no-other-state cases by UCCJA §3(a)(4), Virginia Code §20-126(A)(4). That is not a sound analysis, and the Virginia Supreme Court said so in Middleton v. Middleton, 227 Va. 82, 314 S.E.2d 362 (1983).

Virginia can't be their home state if they never lived here. But what about Section 3(a)(2) of the UCCJA, providing for jurisdiction in a state where the children have "significant connections"? It is sometimes argued that if one parent and the family of origin are here, and the child has visited here, then -- since it speaks of the "child's future" connections -- the fact that one parent wants to bring the child here furnishes connection enough. A rather weak argument, but occasionally made.

If this is not part of a Virginia divorce, and falls into juvenile court, has the juvenile court got anything to go on? The first answer that comes to mind is that juvenile courts in Virginia are usually very protective of their resources, and usually take the position that they will not touch a case if a child does not live within the county. This can be very awkward when children are temporarily out of the county, as when the one parent has left home and taken refuge with the family of origin across the county line, sought to avoid threats of violence by staying with friends or in a shelter, etc.

Code §16.1-241, setting forth the basic jurisdiction of the juvenile court, is generally thought to be the source of this attitude, but its language is not so clear as one would hope. It starts out by giving judges of the juvenile court exclusive original jurisdiction within the limits of the territory for which the court was created and one mile beyond the city or county limits in all cases involving "(a) the custody, visitation, support, control or disposition of a child ... (3) whose custody, visitation or support is the subject of controversy or requires determination." For the proposition that the child has to be in the city or county or a one-mile radius, you have to read the grammar and its logic backwards.

From that point there are arguments attempting to bootstrap some sort of jurisdiction from down into the venue statute, Code §16.1-243. That statute gives (A) original venue over (1) cases involving children (other than support) according to a scheme set forth in Subsection (b) relating to custody and visitation and incorporating wording from the Uniform Child Custody Jurisdiction Act (UCCJA). Echoing Virginia Code §20-126, it gives venue to the court of the city or county which "in order of priority" is the home [city or county] or recent home prior to removal, the significant connection city or county, the one where the child is physically present and has been abandoned or subject to emergency conditions, or the forum county or city if there is no other that satisfies the preceding subsections. This order of priority of course derives from the PKPA and the Commentary to the UCCJA, as the UCCJA text itself does not expressly embody it.

As to the children who are not present, have never been in Virginia, and are now in a foreign country, the attempt to invoke Subsection (ii) on "significant connection" would seem to run afoul of the "in order of priority" wording. This does, however, require reading the priority provision in a negative direction, and arguing that if the foreign country has home-state status, the operation of the provision for Virginia significant connection is precluded thereby.

In all of this one should not forget the famous old sex-neutral custody statute, Code §31-15, which was supposed to be consigned to oblivion by a "contingent repeal" dependent on the Family Court, and is (what do you know?) still around. That statute, which applies in cases of married parents, gives jurisdiction over the custody of a child to the courts in the city or county "in which the child is." (One might argue that this statute also applies to unmarried parents because of its second sentence, but it really appears that second sentence is designed for marital cases, since it speaks of parents "divorced or not.")