AKA, BOGO, BLT, BTW…
From the world of texting’s LOL’s to the medical arena’s HIPAA’s – acronyms help all of us use brevity to speak volumes in every facet of life. And, yes, the legal world is not short on them, either. In fact, the legal world is riddled by and with them.
Today, we’ll be discussing a big one, the UCCJEA. If ever there was a need for an acronym, the Uniform Child Custody Jurisdiction and Enforcement Act gives us one. And, if the name of the UCCJEA isn’t daunting enough, the ins and outs of the act itself would leave most heads spinning, especially at first glance. You will find better people than I have created flow charts galore to help facilitate understanding the UCCJEA.
The South Carolina legislature has incorporated the UCCJEA in Section 63-15-330 of the South Carolina Code of Laws (2009). The purpose of the UCCJEA is to help determine whether South Carolina has jurisdiction to make an award of child custody or to modify or enforce another state’s child custody orders. The United States Congress enacted the Federal Parental Kidnapping Prevention Act (PKPA) to help determine jurisdictional issues as well, but the PKPA is an acronym for another day and another blog. For purposes of our discussions today, the UCCJEA is our focus, specifically relating to situations where no child custody order exists and the steps a South Carolina court takes in determining whether it has jurisdiction and, if it does have jurisdiction, the factors a family court considers in determining whether it should exercise jurisdiction.
Where NO court order regarding child custody has previously been entered, the court must determine: (1) whether it has jurisdiction, and (2) whether it is proper to exercise jurisdiction if it does have it.
Section 63-15-330 of the SC Code of Laws (2009) provides the basis for a court to have jurisdiction under the UCCJEA. And, unfortunately, acronyms are not helpful in relaying the language of this section of the Code, so here it is in full text:
SECTION 63-15-330. Basis for jurisdiction.
(A) Except as otherwise provided in Section 63-15-336, a court of this State has jurisdiction to make an initial child custody determination only if:
(1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State, but a parent or person acting as a parent continues to live in this State;
(2) a court of another state does not have jurisdiction under item (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under Section 63-15-342 or 63-15-344, and:
(a) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and
(b) substantial evidence is available in this State concerning the child’s care, protection, training, and personal relationships;
(3) all courts, having jurisdiction under item (1) or (2), have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under Section 63-15-342 or 63-15-344; or
(4) no court of any other state would have jurisdiction under the criteria specified in item (1), (2), or (3).
(B) Subsection (A) is the exclusive jurisdictional basis for making a child custody determination by a court of this State.
(C) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.
When making a jurisdictional determination on an initial custody case, Section 65-15-302 of the South Carolina Code of Laws (2009) states that priority goes to the “home state”, which Section 65-15-302 defines as:
the state in which the minor child has lived with a parent or a person acting as a parent for at least six (6) consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months old, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.
Absent a handy dandy flow chart, here’s a breakdown of the statute:
- Priority goes to the home state; so, if the court determines South Carolina is the home state, then the court has jurisdiction and South Carolina remains the home state for six months after the child leaves if a contestant remains in the home state.
- If South Carolina is NOT the home state OR a court of the home state of the child has declined jurisdiction on the basis that South Carolina would be a more appropriate forum, inquiry is then made into:
- whether the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have significant connections with this State other than mere physical presence; AND
- whether substantial evidence is available in this State concerning the child’s care, protection, training, and personal relationships.
- If neither situation (1) or (2) exists, then if all courts who meet the requirements of being the home state have declined to exercise jurisdiction because South Carolina is the more appropriate forum to determine the custody of the child, then a court of South Carolina has jurisdiction.
- If none of the above exists, the catchall provision provides that a court of South Carolina has jurisdiction.
Ultimately, however, if the court finds that it has jurisdiction, it must still determine whether it should exercise jurisdiction.
Whether South Carolina should exercise jurisdiction generally hinges on whether South Carolina is a convenient forum. Section 63-15-20(A) of the South Carolina Code (2009) allows a court to decline to exercise jurisdiction “at any time it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.”
Here are some factors a court considers in determining whether to decline jurisdiction:
- whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
- the length of time the child has resided outside the State;
- the distance between the court in this State and the court in the state that would assume jurisdiction;
- the relative financial circumstances of the parties;
- any agreement of the parties as to which state should assume jurisdiction;
- the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
- the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
- the familiarity of the court of each state with the facts and issues in the pending litigation.
These factors are not all inclusive, and even before the UCCJEA was enacted, the Supreme Court listed considerations for a court in determining whether it is an inconvenient forum. In Mansour v. Mansour, 296 S.C. 215, 371 S.E.2d 537 (1988) the court considered whether another state recently was the child’s home state, whether another state has closer connections with the child and his family, and if substantial evidence concerning the child’s present or future care, protection, training and personal relationships is more readily available in another state.
Some situations require a family court to decline jurisdiction. If a person has engaged in “unjustifiable conduct”, the family court must decline to exercise jurisdiction. Section 63-15-344(A) of the South Carolina Code (2009) provides for three exceptions to this rule:
- the parents and all persons acting as parents have acquiesced in the exercise of jurisdiction;
- a court of the state otherwise having jurisdiction under Section 63-15-330 through 63-15-342 determines that this State is a more appropriate forum under Section 63-15-342; or
- no court of any other state would have jurisdiction under the criteria specified in Sections 63-15-330 through 63-15-334.
Although the UCCJEA does not specifically define “unjustified conduct”, its predecessor, the UCCJA, allowed the court to decline jurisdiction if the person seeking custody had “wrongfully taken the child from another state or engaged in similar reprehensible conduct”.
After considering all of the above, where a family court in South Carolina determines it has jurisdiction and decides to exercise jurisdiction, once the court issues a child custody order, the South Carolina court has continuing jurisdiction to enforce the custody order. And, any violators of the order can be held in contempt of that order.
In today’s discussions, we addressed a specific area of the UCCJEA relating to situations where no child custody order exists and the steps a South Carolina court takes in determining whether it has jurisdiction and, if it does have jurisdiction, the factors it considers in determining whether it should exercise jurisdiction. And, as the length of this discussion suggests, there is no shortcut to explaining and understanding the UCCJEA. But, the acronym still helps.