Family Law Feb 2005 Flashcards
(6 cards)
Summary
Although the various states utilize a variety of decision-making standards in judging parental relocation requests that inhibit visitation with the noncustodial parent, a move sought in good faith that will serve the children’s best interests ordinarily will be granted. Although State B obtained personal jurisdiction over Harold when he was personally served in State B, jurisdiction over the interstate enforcement and modification of child support orders is governed by the Uniform Interstate Family Support Act (UIFSA). Under that Act, State B would have jurisdiction to enforce the State A order as long as Wendy registers it, but because Harold is still a resident of State A, State B would not have jurisdiction to modify the order.
Jurisdiction over the interstate modification of a child custody order is governed by the federal Parental Kidnapping Prevention Act (PKPA). Under the PKPA, as well as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the State B court would not have jurisdiction to modify the State A custody order decree because Harold is still a resident of State A.
If a custodial parent’s relocation petition is made in good faith and not for the of defeating the other parent’s visitation rights and if the move is in the best interests of the children, permission to move with the children will be granted.
In enunciating standards to govern relocation disputes, courts have balanced the impact on visitation by the noncustodial parent against the benefits of the move to both the children and the custodial parent. Although the law in this area “has been unusually unstable, with some states having undergone rather significant shifts in their standards over recent years . . . , [t]he clear trend has been that of increasing leniency toward the parent with whom the child has been primarily living.” Some states now permit the custodial parent and child to move unless the parent’s motives for moving are vindictive. . Other states require the parent who wishes to relocate to show that the proposed move serves the child’s best interests. See, e.g., Pollock v. Pollock, 889 P.2d 633 (Ariz. 1995). Yet others will permit the custodial parent to relocate unless the evidence shows that the move will be detrimental to the child. Some courts have also emphasized the availability of an alternative reasonable visitation schedule; if such an alternative exists, the court will almost always grant the relocation request.
Application
Under any of these approaches, Wendy should be permitted to relocate to State B. There is no evidence that Wendy’s proposed move was aimed at defeating Harold’s visitation rights, and the court found that her request was made in good faith. Wendy was offered a job in State B at a salary twice that of her job in State A, an improvement in her economic circumstances that would clearly benefit the children. There is no evidence that the move would adversely affect the children socially or educationally. Both are very young (ages 5 and 7) and thus highly unlikely to suffer from the loss of long-term relationships or the disruption of an academic program. Because Wendy’s new home in State B is only 100 miles from Harold’s, it is likely that a reasonable alternative visitation schedule that will fully protect the children’s relationship with Harold can be worked out: the original visitation order called for visitation on alternate weekends and during the month of July; certainly the July visitation schedule could be preserved and some of Harold’s alternate weekends could be replaced with longer visitation periods during school holidays; if Harold and Wendy were to share the job of transporting the children to Harold’s home, weekend visits also seem quite plausible. Accordingly, the court was correct in allowing Wendy to relocate with the children.
A registered child support order is enforceable in a nonissuing state.
The interstate enforcement of child support is governed by UIFSA, which has been adopted by all states. Although the courts of State B have personal jurisdiction over Harold based on in-state personal service (See Burnham v. Superior Court of California, 495 U.S. 604 (1990)), personal jurisdiction is not enough to give a State B court jurisdiction to enforce or modify the State A support and custody decrees.
Under UIFSA § 603(b), a registered child support order issued in another state is “enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this State.” Thus, the State B court may exercise personal jurisdiction over Harold and enforce the State A child support order because Wendy registered that order.
[NOTE: Applicants could receive extra credit for noting that Wendy could still enforce the State A order through a State B court even if State B did not have personal jurisdiction over Harold. To do so, she would utilize UIFSA’s two-state procedures.]
The state that issued a child support order retains exclusive jurisdiction to modify that order as long as the support obligor continues to reside in that state.
The interstate modification of a child support order is also governed by UIFSA. Under UIFSA, the state that originally issued a child support order has continuing, exclusive jurisdiction to modify the order if that state remains the residence of the obligee, the child, or the obligor, and at least one of the parties does not consent to the jurisdiction of another forum. See UIFSA § 205. See also UIFSA § 603 (“A tribunal of this State shall recognize and enforce, but may not modify, a registered order if the issuing tribunal had jurisdiction.”). Harold continues to reside in State A and has not consented to the jurisdiction of another forum. Thus, a State B court does not have jurisdiction to modify the State A order. An extension of the child support obligation from 18 to 21 years would represent an impermissible modification because, under UIFSA, the law of the issuing state, State A, governs the support obligation, not the law of the enforcing state, State B. See UIFSA § 604. The fact that Harold was personally served in State B does not change this result. See Point Two above.
Only the courts of the state that originally issued a child custody order may modify that order while the child or any contestant continues to reside in the issuing state.
The interstate modification of a child custody order is governed by the federal Parental Kidnapping Prevention Act (PKPA). The joint decision-making provision that Wendy sought to modify is part of the State A custody order, and the PKPA provides that a state may not modify a custody order issued by another state if either the child or any contestant continues to reside in the issuing state and the issuing state’s courts do not decline to exercise jurisdiction. See 28 U.S.C. § 1738A(c)). State B’s personal jurisdiction over Harold does not alter this result. Under the Supremacy Clause, the PKPA takes precedence over any conflicting state law. See, e.g., Murphy v. Woerner, 748 P.2d 749 (Alaska 1988).
It is also unlikely that State B law would conflict with the PKPA, as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which in 2003 had been adopted in 31 states, contains custody-modification standards virtually identical to those of the PKPA. Under the UCCJEA, a state that properly issued a custody decree retains continuing, exclusive jurisdiction until all parties and the child have left the state, or an issuing state court has determined that there is no longer any significant connection between the child and the person remaining in the state and that substantial evidence is no longer available in that state. See UCCJEA§202.
Since there are no facts to suggest that State A would decline to exercise jurisdiction, a State B court may not modify the State A custody decree. Thus, if Wendy wishes to modify the custodial arrangement, she will be required to institute proceedings in State A.
