Tag Archives: UCCJEA

Simplifying The Custody Process When One Parent Lives Out of State

Even under the best of circumstances, child custody and parents’ rights are fraught, complex issues.  If one parent lives in Massachusetts and one does not, it is even more stressful, and here’s why:

Under the Uniform Child Custody Jurisdiction Act (UCCJA) which is the current law in Massachusetts, the Commonwealth has jurisdiction over matters of child custody for a period of 6 months after the child has moved from Massachusetts to another state.  Every other state except Massachusetts operates under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

This legislative session, Senator Cynthia Creem is taking the lead and has filed Senate Bill 711 which proposes having the UCCJEA supersede the UCCJA. The proposal is currently in the Joint Committee on the Judiciary awaiting a hearing date.

Interestingly enough, The UCCJEA isn’t actually a child custody law.  It’s a set of guidelines designed to make interstate custody issues more uniform.  It doesn’t have any effect on whether a parent receives custody or visitation, nor does it affect any substantive rights of parents. The UCCJEA is merely an enforcement tool and a method for determining which state has jurisdiction over a custody proceeding.  The purpose of the UCCJEA is to create uniformity and predictability in the custody process involving one parent living in MA and the other parent living out of state.

Court jurisdiction plays an important role in custody and visitation for parents who live in different states. UCCJEA helps to determine which court has the right to hear the case and make rulings — thereby avoiding dueling custody hearings in two different states.  It ensures that a jurisdictionally-proper custody/visitation order will be recognized and enforced across state lines.

Here are the basics about the UCCJEA:

The UCCJEA emphasizes enforcement.  It’s true that one parent may have to travel to hearings and trials outside of their state of residence, as well as find a lawyer who can represent them in the appropriate court of law.  However, the proposal permits out-of-state parties to be deposed or to testify by telephone, audiovisual, or other electronic means, which can prove less costly to the parties.  With potential options such as telephone conferencing and Skype available, it is not necessarily the case that the parent and child are burdened with returning to court in the home state.

In addition, the proposal provides that the court may assess travel and other expenses associated with out-of-state litigation to one of the parties. It also means that parents who abduct their own children won’t be able to run to another state for a custody ruling that they like better than the existing one.  The new proposal remedies discrimination against lesbian, gay, bisexual, and transgender persons in instances where a spouse, partner or significant other relocates to another jurisdiction – one that holds a person’s sexual orientation or gender identity against them when making custody determinations.

There are four basic considerations for a court to have jurisdiction over an initial child custody or visitation order:

  1. Where is the home state? The home state is where a child has been for at least six months prior to the legal action. The UCCJEA gives priority to the child’s home state.
  2. Is there a significant connection? Does the child have significant ties to a state and does that state have substantial evidence concerning the child?
  3. Is there a more appropriate forum? At times both the home state and the significant connection state decline jurisdiction in favor of another state that is more convenient.
  4. Is there a vacuum jurisdiction available?  If no court meets the above three standards, another court may step in and rule on the initial custody proceeding.

The current proposal before the legislature tackles issues that the UCCJA does not address. The domestic violence bar raised concerns regarding situations where parents take children in order to escape domestic violence.  Those concerns were incorporated into the bill as the “domestic violence exception”.  Furthermore, there are additional protections for victims of domestic violence in this bill regarding police intervention and authority to order costs and fees to prevailing parties that do not currently exist. The parties may also mutually agree in writing that the court may no longer have continuing, exclusive jurisdiction in court approved agreements, which is not currently available to parties in family law proceedings.

The UCCJEA benefits both children and parents by simplifying the custody process.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
Comments are disabled for this blog. To submit your comments please e-mail issuespot@bostonbar.org

Leave a comment

Filed under Uncategorized

A Glimpse Into the Judiciary Committee’s Agenda

As we mentioned in last week’s blog post, almost all of the BBA’s bills end up in the Judiciary Committee.  That’s because the Judiciary Committee historically considers all bills relating to crimes, sentencing, the judiciary, judicial salaries, parole, and other corrections issues.  The Judiciary Committee also gets a handful of proposals to change the Constitution each session.

This session, there are three new House appointees to the Judiciary Committee:  Representative Bruce Ayers, freshman Representative Claire Cronin, and Representative Jeffrey Roy.  The new senators on the Judiciary Committee include the Chairwoman Katherine Clark and Senator Will Brownsberger.  Of the seventeen members of the Judiciary Committee, nine are lawyers.  Other members of the committee include a small business owner, a community activist and a funeral director.

With 771 bills already assigned to the Judiciary Committee there will probably be between fourteen and sixteen public hearings during the two-year session that started in January.  To put this number in perspective, the committee with the next largest number of bills currently before it, the Joint Committee on Public Service, currently has 390 bills.  The Joint Committee on Public Health currently has 349.

One of the first public hearings the Judiciary Committee will schedule will pertain to matters relating to amending the Constitution.  The joint rules of the House and Senate mandate specific time frames for amending the constitution. Any such amendment filed by April 24, 2013 must receive the Judiciary Committee’s recommendation that same day…

Pending in the Judiciary Committee this session. . .

Public accommodations protections for transgender individuals – Building upon the success of last year’s transgender equality law there is a proposal before the Judiciary Committee that would grant transgender individuals access to sex segregated public facilities based on their own gender-identity. .

Changes to the wiretap statute- Both Judiciary Committee Chairs have co-sponsored the bill, but that does not mean this proposal won’t be without controversy or complication.  Changing the wiretap statute has long been a priority of the Attorney General’s Office and other law enforcement officials.  Those in support of the bill refer to it as an “update.”  Those that don’t necessarily endorse the bill see it as a “broad expansion.”  The list of crimes that will ultimately be included in the wiretap statute will constitute the crux of the debate.

Uniform Child Custody Jurisdiction Enforcement Act- This uniform law has been adopted in all 49 states and its purpose is to provide a remedy for conflicts that occur under the current Massachusetts child custody jurisdiction law.  Under the UCCJEA, once a state has exercised jurisdiction over custody, that state has exclusive jurisdiction over potential changes in the judgment or order — providing a parent, the child, or someone acting as a parent remains in the original state.

Not pending in the Judiciary Committee this session. . .

Gun control bills – While the House referred a gun control bill to the Judiciary Committee, the Senate referred the same bill to the Joint Committee on Public Safety and Homeland Security.  In the end, the House concurred with the Senate. So it looks like the bills dealing with changes to our gun laws will not be handled by the Judiciary Committee.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
Comments are disabled for this blog. To submit your comments please e-mail issuespot@bostonbar.org

Leave a comment

Filed under Uncategorized