Family Law Jurisdiction

Jurisdiction in Child Custody Cases

• A court can enter or modify an order if:
  • No other state has or accepts home-state jurisdiction
  • The child and at least one parent have a significant connection with the state
  • There is substantial evidence in the state concerning the child's care, protection, training, and personal relationships

Default Jurisdiction

• If no state has jurisdiction through home-state or significant-connection jurisdiction, a court in a state with appropriate connections to the child has jurisdiction

Exclusive-Continuing Jurisdiction

• Courts that make the initial ruling in a custody case have exclusive jurisdiction over the matter until:
  • The parties no longer reside in the state
  • The child no longer has a significant connection to the state, and any substantial evidence connected to the child's condition is no longer available in the state

Long-Arm Jurisdiction

• Due process requires an act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum state
• Several states have upheld the UIFSA's provision as meeting the requisite due-process requirements

UIFSA Jurisdiction

• A state court may exercise jurisdiction to establish a child support order if:
  • The petition or comparable pleading is filed after a pleading is filed in another state only if:
    • The petition or comparable pleading in the state is filed before the expiration of the time allowed in the other state for filing a responsive pleading challenging the exercise of jurisdiction by the other state
    • The contesting party timely challenges the exercise of jurisdiction in the other state
    • If relevant, the state is the home state of the child

Child Support

• All jurisdictions have adopted child-support guidelines to streamline the process by using objective bases for determining child-support awards

Signiificant Connection Jurisdiction

• A court can enter or modify an order if:
  • No other state has or accepts home-state jurisdiction
  • The child and at least one parent have a signiificant connection with the state
  • There is substantial evidence in the state concerning the child's care, protection, training, and personal relationships

Default Jurisdiction

• If no state has jurisdiction through home-state jurisdiction or substantial-connection jurisdiction, then a court in a state with appropriate connections to the child has jurisdiction

Exclusive-Continuing Jurisdiction

• Courts that make the initial ruling in a custody case have exclusive jurisdiction over the matter until the court determines that:
  • The parties no longer reside in the state
  • The child no longer has a significant connection to the state, and any substantial evidence connected to the child's condition is no longer available in the state

UIFSA Jurisdiction

• A state court may exercise jurisdiction to establish a child support order if:
  • The petition or comparable pleading is filed after a pleading is filed in another state only if:
    • The petition or comparable pleading in the state is filed before the expiration of the time allowed in the other state for filing a responsive pleading challenging the exercise of jurisdiction by the other state
    • The contesting party timely challenges the exercise of jurisdiction in the other state
    • If relevant, the state is the home state of the child

Jurisdictional Requirements

• For modification of a child-support order, see section III.E.3., Jurisdiction for Modification of Support
• All jurisdictions have adopted child-support guidelines to streamline the process by using objective bases for determining child-support awards

Jurisdiction in Family-Related Disputes

• A court hearing a family-related dispute must generally have both subject-matter jurisdiction and personal jurisdiction
• Most states have statutory residency requirements, typically ranging from six weeks to two years, for a court to have subject-matter jurisdiction
• The Full Faith and Credit Clause applies to divorce decrees as long as one of the spouses was a resident of the state that granted the decree

Matrimonial Courts

• Matrimonial courts have full equity powers in matrimonial actions, which include:
  • Division of property
  • Divorce or annulment
  • Custody
  • Support and alimony
  • Award of attorney's fees
  • Enforcement of separation agreements
  • All other matters related to matrimonial actions

Divisible Divorce Doctrine

• Under the doctrine of divisible divorce, a court may have sufficient jurisdiction to grant a divorce but lack such jurisdiction with respect to other divorce-related matters, such as property division, alimony, and child support

Collateral Attack on Jurisdiction

• The only way for the nonresident defendant to attack the issuance of an ex parte divorce is to demonstrate that the plaintiff was not domiciled in the divorcing state at the time that the judgment was granted or left the state's domicile immediately after the entry of the divorce

When Courts Can Decline Jurisdiction

• If a court has either initial or exclusive-continuing jurisdiction, the court may decline to exercise such jurisdiction if it finds the forum to be inconvenient after considering the following factors:
  • 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 of the jurisdiction
  • The distance between the competing jurisdictions
  • The parties' relative financial circumstances
  • Any agreement of the parties regarding which state should assume jurisdiction
  • The nature and location of the evidence required to resolve the pending litigation, including the child's testimony
  • The ability of each state's court to decide the issue expeditiously and the procedures necessary to present the evidence
  • The familiarity of each state's court with the facts and issues in the pending litigation

Temporary Emergency Jurisdiction

• A jurisdiction that does not otherwise have jurisdiction may obtain temporary emergency jurisdiction and enter an order if the child is in danger and requires immediate protection
• If a prior custody order is in existence, then the court rendering the emergency order must allow a reasonable time period for the parties to return to the state of original jurisdiction and argue the issues at hand before that court

Signiificant Connection Jurisdiction

• A court can enter or modify an order if:
  • No other state has or accepts home-state jurisdiction
  • The child and at least one parent have a signiificant connection with the state
  • There is substantial evidence in the state concerning the child's care, protection, training, and personal relationships

Default Jurisdiction

• If no state has jurisdiction through home-state jurisdiction or substantial-connection jurisdiction, then a court in a state with appropriate connections to the child has jurisdiction

Exclusive-Continuing Jurisdiction

• Courts that make the initial ruling in a custody case have exclusive jurisdiction over the matter until the court determines that:
  • The parties no longer reside in the state
  • The child no longer has a significant connection to the state, and any substantial evidence connected to the child's condition is no longer available in the state

UIFSA Jurisdiction

• A state court may exercise jurisdiction to establish a child support order if:
  • The petition or comparable pleading is filed after a pleading is filed in another state only if:
    • The petition or comparable pleading in the state is filed before the expiration of the time allowed in the other state for filing a responsive pleading challenging the exercise of jurisdiction by the other state
    • The contesting party timely challenges the exercise of jurisdiction in the other state
    • If relevant, the state is the home state of the child

Jurisdictional Requirements

• For modification of a child-support order, see section III.E.3., Jurisdiction for Modification of Support
• All jurisdictions have adopted child-support guidelines to streamline the process by using objective bases for determining child-support awards

Jurisdiction in Family-Related Disputes

• A court hearing a family-related dispute must generally have both subject-matter jurisdiction and personal jurisdiction
• Most states have statutory residency requirements, typically ranging from six weeks to two years, for a court to have subject-matter jurisdiction
• The Full Faith and Credit Clause applies to divorce decrees as long as one of the spouses was a resident of the state that granted the decree

Matrimonial Courts

• Matrimonial courts have full equity powers in matrimonial actions, which include:
  • Division of property
  • Divorce or annulment
  • Custody
  • Support and alimony
  • Award of attorney's fees
  • Enforcement of separation agreements
  • All other matters related to matrimonial actions

Divisible Divorce Doctrine

• Under the doctrine of divisible divorce, a court may have sufficient jurisdiction to grant a divorce but lack such jurisdiction with respect to other divorce-related matters, such as property division, alimony, and child support

Collateral Attack on Jurisdiction

• The only way for the nonresident defendant to attack the issuance of an ex parte divorce is to demonstrate that the plaintiff was not domiciled in the divorcing state at the time that the judgment was granted or left the state's domicile immediately after the entry of the divorce

When Courts Can Decline Jurisdiction

• If a court has either initial or exclusive-continuing jurisdiction, the court may decline to exercise such jurisdiction if it finds the forum to be inconvenient after considering the following factors:
  • 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 of the jurisdiction
  • The distance between the competing jurisdictions
  • The parties' relative financial circumstances
  • Any agreement of the parties regarding which state should assume jurisdiction
  • The nature and location of the evidence required to resolve the pending litigation, including the child's testimony
  • The ability of each state's court to decide the issue expeditiously and the procedures necessary to present the evidence
  • The familiarity of each state's court with the facts and issues in the pending litigation

Temporary Emergency Jurisdiction

• A jurisdiction that does not otherwise have jurisdiction may obtain temporary emergency jurisdiction and enter an order if the child is in danger and requires immediate protection
• If a prior custody order is in existence, then the court rendering the emergency order must allow a reasonable time period for the parties to return to the state of original jurisdiction and argue the issues at hand before that court

Ways to Obtain Personal Jurisdiction in Court

• Personal service on the defendant parent can grant personal jurisdiction.
• Defendant parent's consent, such as entering an appearance in the action, can also establish personal jurisdiction.
• A court can obtain personal jurisdiction if the defendant parent has previously resided in the state with the child.
• Providing prenatal expenses or support for the child in the state can also be a basis for personal jurisdiction.
• If the child resides in the state due to the parent defendant's actions or directives, personal jurisdiction can be established.
• Engaging in sexual intercourse in the state, which may have resulted in the child's conception, can be a basis for personal jurisdiction.
• Asserting parentage in the state's putative father registry can also grant personal jurisdiction.
• Any other basis that is consistent with federal and state constitutions can be used to exercise personal jurisdiction.

Obtaining Personal Jurisdiction in Parentage Actions

• Personal jurisdiction can be obtained through personal service on the defendant parent.
• Consent of the defendant parent, such as entering an appearance in the action, can also establish personal jurisdiction.
• Past residency with the child in the state is a basis for personal jurisdiction.
• Providing prenatal expenses or support for the child while residing in the state is another way to establish personal jurisdiction.
• If the child resides in the state as a result of the parent defendant's acts or directives, personal jurisdiction can be obtained.
• Engaging in sexual intercourse in the state, which may have resulted in the conception of the child, is a basis for personal jurisdiction.
• Asserting parentage in the putative father registry maintained by the state can also establish personal jurisdiction.
• Any other basis consistent with federal and state constitutions for the exercise of personal jurisdiction is also acceptable.

UIFSA and Jurisdiction in Parentage Actions

• A state court can establish a child support order if the petition or comparable pleading is filed after a pleading in another state, but only under certain conditions.
• The first condition is that the petition or comparable pleading in the state must be filed before the time allowed in the other state for filing a responsive pleading challenging the exercise of jurisdiction by the other state.
• The second condition is that the contesting party must timely challenge the exercise of jurisdiction in the other state.
• The third condition, if relevant, is that the state is the home state of the child.
• These conditions are stated in UIFSA § 204.

Child Support Guidelines

• Jurisdictions have adopted child-support guidelines to streamline the process, using objective bases for determining child-support awards.

Calculating Support

• Income-shares model is used in most jurisdictions, operating on the theory that a child should receive the same proportion of parental income as if the parties continued to live together.
• Percentage-of-income model is used in some jurisdictions, determining the minimum amount of child support by using a percentage of the supporting parent's net income, depending on the number of children supported.
• Certain expenditures, such as taxes or necessary medical expenditures, may be excluded when calculating net income.
• Melson formula is similar to the income-shares model, but takes into account six specific considerations, including minimum amount each supporting parent must retain, number of supporting parent's dependents, and a Standard of Living Adjustment (SOLA).

Deviations from Child-Support Guidelines

• There is a rebuttable presumption that the amount calculated pursuant to the child-support guidelines is correct.
• Deviations are permitted as circumstances warrant, with specific findings explaining and supporting the deviation.
• If a parent is unemployed or underemployed, the court may impute an income to calculate the child-support award.
• If the parent(s) earn a significant income far exceeding the needs of the child, the court may modify the award to provide solely for the child's needs.

Other Considerations

• Courts consider additional factors in determining the amount of support, including:
  • Ages of the children
  • Unusual needs and unusual obligations (e.g., special education)
  • Support obligations of the parties
  • Assets of the parties
  • Medical expenses outside of insurance coverage
  • Standard of living
  • Duration of marriage, for spousal support or alimony pendente lite
  • Best interests of the child

Post-Award

• Once a child-support award has been paid, the obligor is not permitted to monitor how the money is expended.

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

• Purpose: to prevent jurisdictional disputes between courts in different states on matters of child custody and visitation.
• All states except Massachusetts have adopted the UCCJEA.

Initial Custody Determination (Home-State Jurisdiction)

• A court has subject-matter jurisdiction to preside over custody hearings and enter or modify custody or visitation orders if:
  • The state is the child's home state (where the child has lived with a parent or guardian for at least six consecutive months immediately prior to the custody proceeding, or since birth, if the child is less than six months old).
  • The state was the child's home state in the past six months, and the child is absent from the state, but one of the parents (or guardians) continues to live in the state.

Significant-Connection Jurisdiction

• A court can enter or modify an order if:
  • No other state has or accepts home-state jurisdiction.
  • The child and at least one parent have a significant connection with the state.
  • There is substantial evidence in the state concerning the child's care, protection, training, and personal relationships.

Default Jurisdiction

• If no state has jurisdiction through home-state jurisdiction or significant-connection jurisdiction, then a court in a state that has appropriate connections to the child has jurisdiction.

Exclusive-Continuing Jurisdiction

• Courts that make the initial ruling in a custody case have exclusive jurisdiction over the matter until the court determines that:
  • The parties no longer reside in the state.
  • The child no longer has a significant connection to the state, and any substantial evidence connected to the child's condition is no longer available in the state.

When Courts Can Decline Jurisdiction

• If a court has either initial or exclusive-continuing jurisdiction, the court may decline to exercise such jurisdiction if it finds the forum to be inconvenient after considering factors such as:
  • Domestic violence.
  • Length of time the child has resided outside the jurisdiction.
  • Distance between competing jurisdictions.
  • Parties' relative financial circumstances.
  • Agreements between parties.
  • Location and nature of evidence required.
  • Ability of each state's court to decide the issue expeditiously.
  • Familiarity of each state's court with the facts and issues.
  • Unjustifiable conduct, such as wrongfully removing a child from another state.

Temporary Emergency Jurisdiction

• A jurisdiction that does not otherwise have jurisdiction may obtain temporary emergency jurisdiction and enter an order if:
  • The child is in danger and requires immediate protection.
  • If a prior custody order is in existence, the court rendering the emergency order must allow a reasonable time period for the parties to return to the state of original jurisdiction and argue the issues at hand before that court.
  • If there is no prior custody order, the emergency order remains in effect until a decision is rendered by the child's home state.

Enforcement of Another State's Orders

• A custody order from another state can be registered with or without a simultaneous request for enforcement.
• The registering court can then grant any relief available for enforcement of the registered order.

Expedited Enforcement of a Child-Custody Determination

• The UCCJEA uses a process similar to habeas corpus.
• The respondent must appear in person at a hearing held on the first judicial day after service of the order.
• The petitioner will be awarded immediate physical possession of the child unless:
  • The custody or visitation order was not registered.
  • The issuing court did not have jurisdiction.
  • The order had been stayed or vacated.
  • The respondent was entitled to notice, but notice was not given before the court issued the order.

Warrant for Child Custody

• The court may issue a warrant, upon a petitioner's request, for the petitioner to take physical possession of a child if it finds that the child is likely to suffer serious physical injury or be removed from the state.

Law Enforcement

• The UCCJEA allows any law-enforcement official to take any lawful action to enforce a custody order or obtain the return of a child.

Uniform Deployed Parents Custody and Visitation Act (UDPCVA)

• The UDPCVA integrates with the UCCJEA but applies specifically to parents who are also service members.
• The act provides that when imminent deployment is not an issue, courts cannot use a parent's deployment as a negative factor in determining the best interests of the child.
• The act sets out a procedure for out-of-court custody agreements, sets guidelines for temporary custody, and prohibits entry of permanent custody orders before or during deployment without the service-member parent's consent.

Parental Kidnapping Prevention Act (PKPA)

• Applies to civil interstate custody disputes, including visitation rights, not just parental kidnapping cases
• Takes precedence over conflicting state law under the Supremacy Clause of the U.S. Constitution
• Discourages forum shopping between states and allocates powers and duties between states when a child-custody dispute arises
• Orders from noncompliant jurisdictions are not entitled to full faith and credit

Best-Interests-of-the-Child Standard

• Determines child custody based on the best interests and welfare of the child
• Typically, a parent is in the best position to care for a minor child, unless determined unfit
• Courts consider factors such as who the primary caretaker of the child was during the marriage and separation

Factors in Determining Custody

• Race or religion: generally not considered in determining custody
• Parents' sexual conduct: may not be considered in making a custody decision, unless it has a negative effect on the child
• Third-party rights: legal parents are presumptively entitled to custody, unless the legal parent is unfit or it would be detrimental to the child
• Child's preference: considered if the child has sufficient maturity to express a preference
• Guardian ad litem: may be appointed to advocate for the child's preferences
• Siblings: courts avoid separating siblings to maintain stability and promote sibling relationships
• Domestic violence: courts consider the presence of domestic violence when awarding custody

Visitation and Parenting Time

• Generally, the noncustodial parent is allowed reasonable visitation with the child
• Denial of visitation is unusual and typically only an issue when it would seriously endanger the child's health
• Courts place restrictions on visitation, such as supervised parenting time or denial of overnight visits
• Third parties, like grandparents, may seek visitation, but it is limited to cases where they have acted in loco parentis

Enforcement of Custody and Visitation Orders

• Parties seeking enforcement can request assistance through the court system
• Sanctions may include compensatory visitation, attorney's fees, court costs, fines, and jail time
• Tort damages may be awarded to a parent for the period of time the child is wrongfully out of their custody
• A habeas corpus proceeding is a way to be heard by the court and revisit the issue of which placement is in the best interests of the child

Modification of Custody Orders

• A state retains subject-matter jurisdiction to modify the order while the child remains a minor
• Most jurisdictions apply a change-in-circumstances standard, requiring a substantial and unforeseen change
• The purpose is to promote stability in the child's life
• Violation of a child visitation order does not automatically change the designated custodial parent
• Failure to pay child support is not a basis to withhold visitation or modify an existing child-custody order

Relocation

• The law regarding relocation with a minor child is diverse
• Some jurisdictions consider the relevant facts and place the predominant weight on the best interests of the child
• The custodial parent seeking relocation bears the burden of demonstrating that the relocation is for a legitimate and reasonable purpose
• Factors considered include the nature of the nonrelocating parent's involvement, the age and needs of the child, and the ability to preserve the relationship with the nonrelocating parent

Marital Agreements

• Subject to principles of contract law, like other legal agreements.

Types of Marital Agreements

• Premarital Agreements:
  • A contract made before marriage, typically covering property division and spousal support in case of divorce or death.
  • Valid marriage is sufficient consideration.
  • Must expressly state applicability to divorce proceedings.
  • Clauses relating to child custody and support are unenforceable.
  • Uniform Premarital Agreement Act (UPAA) is a uniform law governing these contracts.
  • Adopted in 26 jurisdictions, with individual states amending it in various ways.
  • UPAA applies same standards and requirements for both marital and premarital agreements.
  • Two states, Colorado and North Dakota, have enacted the Uniform Premarital and Marital Agreements Act (UPMAA).
• Separation Agreement:
  • Made between spouses planning for divorce.
  • Defines property division, spousal support, child support, custody, and visitation.
  • Court generally enforces spousal maintenance and property division provisions if not unconscionable or based on fraud.
  • Provisions related to child support and custody are modifiable by the court if not in the best interests of the child.
  • Agreements are generally merged into the final judgment for divorce, as long as they are based on full and fair disclosure.
  • Enforcement is based on contract law rather than judgment enforcement if no merger occurs.
• Property-Settlement Agreement:
  • Enters into by parties before a divorce decree is issued.
  • Settles the economic issues of the marital estate.
  • Court generally enforces spousal maintenance and property division provisions if not unconscionable or based on fraud.

Validity of Marital Agreements

• A premarital agreement is enforceable if:
  • There has been full disclosure.
  • The agreement is fair and reasonable.
  • It is voluntary.
  • The agreement is in writing and signed by the party to be charged.
  • Agreements may be amended or revoked after the marriage, provided both parties sign a written agreement to that effect.
  • Burden of proving its invalidity is by clear and convincing evidence.

Factors Affecting Enforceability

• Full Disclosure:
  • Premarital agreements must provide full disclosure of financial status, including income, assets, and liabilities of all parties.
  • Disclosure is important to demonstrate that each party exercised a meaningful choice when they agreed to the terms of the contract.
  • Absent full disclosure, a court will generally refuse to enforce the agreement.
• Fair and Reasonable:
  • Courts consider the parties' wealth, age, and health to determine if the agreement is fair.
  • Courts look at both procedural and substantive fairness.
  • An agreement obtained by fraud, duress, or undue influence may be set aside as procedurally unfair.
  • Courts may also look at the terms of the agreement itself to see if they are so unfair as to be unconscionable.
  • Most courts evaluate fairness at the time of execution of the contract, and a minority of jurisdictions will evaluate it at both the time of execution and the time of enforcement.
  • The current trend is for courts to enforce contractual agreements that may not be fair as long as there has been fair disclosure.
• Voluntary:
  • Parties must enter into the contract voluntarily (i.e., free of fraud, duress, or misrepresentation).
  • Courts consider factors such as time-pressure, the parties' previous business experience, and the opportunity to be represented by independent counsel.
  • A party's insistence on the agreement as a condition to marriage is not considered duress.
• Impoverished Spouse:
  • Even if a valid agreement has been voluntarily executed and it meets the test for reasonableness, fairness, and full disclosure, the agreement may be set aside if its result leaves one spouse woefully impoverished to the extent that they become dependent on the state (i.e., welfare).

Modification of Marital Agreements

• A court may uphold a provision in a marital agreement that prevents modification of property rights, including spousal support.
• A court may always modify child-support provisions in a marital agreement even if the agreement states that no modifications may be made.

Agreements Between Unmarried Cohabitants

• Cohabitation Agreements:
  • Contracts between unmarried persons are invalid if the only consideration is sexual relations.
  • Agreements in which other consideration, such as full-time companionship or cooking, is exchanged for financial support will generally be enforced.
  • These contracts may be express, regarding earnings or property rights, or implied.
  • Courts are less likely to enforce an implied contract.
• Property Division Between Unmarried Cohabitants:
  • When there is no express contract, courts will generally provide for equitable distribution of property based on a resulting trust, constructive trust, or quantum meruit theory to avoid unjust enrichment.