Legislatures Consider Replacing UCCJA With UCCJEA

Universally-Adopted Law for Determining Child Custody Jurisdiction Between the States is Not Good Enough. Legislatures Look at Commissioners' Official Rewrite.

Article by Richard Crouch, Attorney at Law, Crouch & Crouch, Arlington, Virginia; (703) 528-6700;
Copyright Richard Crouch 1999. Originally Published in Family Law News, a Virginia
State Bar Publication

Table of Contents of UCCJA Article

Introduction

The Uniform Child Custody Jurisdiction Act, adopted in all the states for many years now, is a pretty good statute. But it isn't a perfect statute, so long as human stupidity, bias or other favoritism are around to foul up its administration. So the American Bar Association-sponsored authors of the UCCJA, the National Conference of Commissioners on Uniform State Laws, have produced a revision. The Virginia General Assembly looked at this revision as Senate Bill 413 in the 1998 Session, but carried it over to the next year.

The new uniform statute is the Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA. It has already been adopted by Oklahoma and Alaska and is bound to prove popular nationwide. For a while there will be the statutory crazy quilt that we had to deal with when there was URESA and RURESA in the support area, but universal adoption within a few years is not unlikely. Because it's almost certain that the states won't adopt the Uniform Act uniformly, but will adapt and tailor its less acceptable provisions, we will perhaps have something of a patchwork anyway. The UCCJEA differs from the older statute in several important respects, which are covered below. The origin of the new law deserves a short explanation too. The proposed Act also revises our adoption laws extensively, but this article does not cover those revisions.

WHY THIS REFORM?

Over the years there have been some spectacularly awful decisions in some states under the UCCJA, particularly in the "emergency jurisdiction" area (for a local discussion of UCCJA emergency jurisdiction see D'Agnese v. D'Agnese, 22 Va App 147, 468 SE2d 140 (1998)). There are several weird fallacies of UCCJA interpretation stalking the jurisprudential woods out there, some ambiguities, and some bewildering phrasings that seemed to be translated directly from Old Prussian needed setting straight.

But the comfortable situation of having the same uniform law in all 50 states, the District and the Territories, made the revision agencies hesitate. What happened instead was that the situation with enforcement of visitation rights nationwide is so disgraceful that the clamor for somebody to do something grew loud. The Commissioners thought maybe they could do at least something by passing a uniform visitation enforcement law. A revision committee, including almost no family lawyers, was appointed to draft this statute and this committee took the bit in its teeth and bolted, deciding that what it would rather do is rewrite the UCCJA. It worked for a couple of years producing a radical and highly politicized revision that seemed to have as its main purpose to make child snatching easier for a certain preferred class of persons. Somehow, though, when the full Conference of Commissioners (NCCUSL) took up the draft and started working on it in 1997, it turned out that this radical draft - at least in its entirety - is not the one that emerged.

In our General Assembly the final NCCUSL draft has been tinkered with some to add Virginia Code Sections and terminology, and one very dubious change that the Commissioners had bracketed as optional has been included.

THE UCCJEA, Generally

The revised Act does seek to solve a number of problems that have persisted in the administration of the universally adopted Uniform Child Custody Jurisdiction Act (UCCJA). It also incorporates a lot of the case law that now provides sound interpretation of that Act and guidance in its use. To a certain extent, the new draft conforms the Uniform Act to the principles of the federal Act, the PKPA -- or was supposed to. At least it was loudly trumpeted as such. (Unfortunately the actual wording does something quite different.)

Improving continuing jurisdiction, curbing emergency jurisdiction, providing express home-state priority and adding some enforcement mechanisms are the big changes. The following discussion will explain the biggest changes first, and then go through the sections of the new statute in order, offering a few comments where appropriate.

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