September 2005

The UCCJEA and Venue

Laura W. Morgan

In 1997, the Uniform Law Commissioners adopted the Uniform Child Custody Jurisdiction and Enforcement Act( UCCJEA), intending to replace the Uniform Child Custody Jurisdiction Act (UCCJA). As stated in the Prefatory Note,

The UCCJEA accomplishes two major purposes.

First, it revises the law on child custody jurisdiction in light of federal enactments and almost thirty years of inconsistent case law. Article 2 of this Act provides clearer standards for which States can exercise original jurisdiction over a child custody determination. It also, for the first time, enunciates a standard of continuing jurisdiction and clarifies modification jurisdiction. Other aspects of the article harmonize the law on simultaneous proceedings, clean hands, and forum non conveniens.

Second, this Act provides in Article 3 for a remedial process to enforce interstate child custody and visitation determinations. In doing so, it brings a uniform procedure to the law of interstate enforcement that is currently producing inconsistent results. In many respects, this Act accomplishes for custody and visitation determinations the same uniformity that has occurred in interstate child support with the promulgation of the Uniform Interstate Family Support Act (UIFSA).

Regardless of whether a state has adopted the UCCJEA or retains the UCCJA, both the UCCJEA and the UCCJA are intended, among other things, to avoid jurisdictional competition and conflict with courts of other states in matters of child custody, to discourage continuing controversies over custody, and to deter abductions and other unilateral removals of children undertaken to obtain custody awards. Thus, at heart, the UCCJEA is a subject matter jurisdiction statute, for it defines which state may take jurisdiction to decide a child custody case. See generally David C. Minneman, Annotation, Construction and Operation of Uniform Child Custody Jurisdiction and Enforcement Act, 100 A.L.R.5th 1 (2002 & Supp. 2004).

Under the UCCJEA § 202(a), the state where an original child custody decree was entered retains exclusive, continuing jurisdiction over child custody determinations so long as any party or the child remains in the state. Thus, when one party leaves the state that issued an original custody order, but the other party or child remains in the state, then the original state retain exclusive, continuing jurisdiction over child custody determinations.

Quite significantly, the UCCJEA does not demand, and indeed does not contemplate, which court of the original state, any one of which has subject matter jurisdiction to modify the child custody order under UCCJEA § 202, must have jurisdiction to modify. In other words, the UCCJEA does not demand that only the actual and particular county court (or juvenile court, or whichever particular court) where the original order was entered, retains exclusive, continuing jurisdiction. Rather, which state court should hear the modification is a question of venue, not jurisdiction under the UCCJEA. This principle has been explicitly stated in numerous jurisdictions. Unfortunately, many trial courts and attorneys have not adhered to this bedrock principle.

For example, in In re Rumsey, 276 Kan. 65, 77, 71 P.3d 1150, 1159 (2003), an attorney discipline proceeding, the Kansas Supreme Court made the following observation:

In reviewing this case, we take note of the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), K.S.A. 38-1336 et seq., which establishes when Kansas courts have jurisdiction to enter orders relating to children. K.S.A. 38-1348(a)(1) provides that Kansas courts have jurisdiction to enter an initial child custody determination when the child has resided in Kansas for the 6 months preceding the filing of the action. The UCCJEA addresses jurisdiction for Kansas courts. It does not address the determination of venue between the state's district courts. In advising Tracy that the divorce must be filed in Leavenworth County, Rumsey incorrectly applied the UCCJEA and misled Tracy regarding Kansas law. As a result, this court concludes that Rumsey violated KRPC 1.1 (competence) as alleged by the Disciplinary Administrator's formal complaint, when he informed Tracy that she had to file the divorce in Leavenworth County.

Rumsey admits that domestic law is a significant portion of his practice. The testimony regarding his advice to Tracy about the venue for her divorce is sharply conflicting. The Panel found Tracy's testimony more credible and determined that Rumsey acted with a selfish motive by filing the divorce action in Leavenworth County. The Panel's finding leads us to conclude that Rumsey knowingly misapplied the UCCJEA and deceived Tracy about its application to benefit himself with increased fees. Rumsey's knowing deception cost Tracy an uncontroverted $2,772.60, which is a significant amount of money to a person in bankruptcy. These facts implicate the sanctions set forth in ABA Standard §§ 4.61.

The court rightly observed that the UCCJEA does not address which Kansas court had modification jurisdiction under the UCCJEA. Indeed, to so advise a client constitutes incompetence under the law.

Courts of other states are equally adamant: the UCCJEA does not address the question of venue. For example, in Arteaga v. Texas Dept. of Protective and Regulatory Services, 924 S.W.2d 756 (Tex. App.-Austin, 1996), the court rejected the argument that only the actual court that issued the original custody order could modify that order. There, the appellate court stated:

We reject Raul's argument because he confuses the concepts of venue and jurisdiction. A district court's statutory authority for subject-matter jurisdiction over termination suits may now be found in the Texas version of the UCCJA. See Tex. Fam. Code Ann. §§§§ 102.011-.012, 152.001(a) (West 1996); Abderholden v. Morizot, 856 S.W.2d 829, 832 (Tex. App.--Austin 1993, no writ). The venue statute comes into play only after the trial court has determined that Texas courts have jurisdiction over the custody dispute. The venue statute fixes the proper location for the proceeding among the various Texas courts that could exercise jurisdiction over the action under the UCCJA.

924 S.W.2d at 762.

Similarly, in Barnett v. Klein, 765 P.2d 777 (Okla. 1988), the court noted:

The stated purpose of the UCCJA is to avoid jurisdictional conflict between courts of different states. 10 O.S.1981, §§ 1602(1). Language involving intrastate jurisdictional and venue disputes is conspicuously absent. The legislature having not seen fit to make the Act apply in purely intrastate controversies, we acknowledge that it does not apply in this case.

765 P.2d at 781. Accord Cummings v. Cummings, 1999 WL 30921, *2 (Conn. Super. 1999) (ruling on venue was not ruling on jurisdiction under UCCJA); Carr v. Carr, 464 So.2d 221 (Fla. 1st DCA 1985) (the UCCJA makes no mention of venue; venue is thus controlled by the general venue statute); In re Custody of Booty, 665 So.2d 444 (La. Ct. App. 1 Cir. 1995) (holding that the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA) do not resolve the dispute between two competing parishes in Louisiana); Dugie v. Cameron, 126 N.M. 433, 971 P.2d 390 (1998) (noting that UCCJEA purports to control the resolution of potential jurisdictional conflicts between the courts of two or more states, but does not control intrastate venue challenges); In re Oates, 104 S.W.3d 571 (Tex. App. - El Paso, 2003) (Texas venue statute did not control question of interstate jurisdiction under UCCJA).

The conclusion to be drawn from these cases interpreting the UCCJEA's provision on exclusive, continuing jurisdiction is clear: a trial court commits manifest error when it uses the UCCJEA to determine where venue in a particular state is proper.