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Child
Custody Jurisdiction & By:
Bradley Coates On
January 1, 2003, legislation that significantly modified the way courts
treat child custody disputes between two competing states went into
effect. The new act, known as the Uniform Child Custody Jurisdiction And
Enforcement Act (UCCJEA) is found in Section 583A of the Hawaii Revised
Statutes. It repealed the previously controlling Uniform Child Custody
Jurisdiction Act (UCCJA). Prior to the passage of this new act, one would
have to look to federal legislation, specifically the Parental Kidnapping
Prevention Act (PKPA), together with the previous version of the UCCJA for
guidance in resolving the key issues as to exactly which state had the
most proper claim to jurisdiction in order to determine inter-state child
custody disputes. The
new UCCJEA now includes specific language which parallels the PKPA. In
fact, the UCCJEA now clearly delineates the roles that the office of the
Attorney General, the Prosecuting Attorney and law enforcement personnel
may play in recovery of children. Furthermore, the new law specifically
allows a warrant to be issued to take physical custody of a child. The
Uniform Child Custody Jurisdiction Act has now been adopted by all the
States, and applies to all child custody proceedings except adoption
proceedings or proceedings pertaining to the authorization of emergency
medical care of the child. Initial
Child Custody Determination: Hawaii’s Family Court has jurisdiction to
make an initial child custody determination if Hawaii has been the “home
state” of the child. The term “home state” is defined for these
purposes to mean where the child has resided during the last six (6)
months, as of the date the action is started. However, a Hawaii family
court might still have jurisdiction, even if Hawaii is not the child’s
home state, if other provisions of the law are deemed applicable. Once a
family court in Hawaii makes a child custody determination, Hawaii has
continuing, exclusive jurisdiction to modify or enforce the order, so long
as either one of the parties or the child continues to reside in the
state. However,
a family court in Hawaii may refuse to exercise jurisdiction to enter
child custody orders if it finds that Hawaii is an inconvenient forum
under the circumstances and that a court of another state is a more
appropriate forum. A family court in Hawaii, which does not have
jurisdiction to modify a child custody determination, may still issue a
temporary order enforcing visitation. Modification
of Child Custody Orders: A Hawaii
family court judge may not modify a foreign child custody order unless
Hawaii has jurisdiction to make an initial determination; and the court of
the other state determines it no longer has exclusive, continuing
jurisdiction; or a determination is made that no one resides in the state
which previously entered child custody orders. However, a family court
judge in Hawaii may invoke temporary emergency jurisdiction if it finds
the child is present in Hawaii and the child has been abandoned, or if the
child or sibling or parent is subjected to, or threatened with,
mistreatment or abuse. Under
the current legislation, the courts of different states may communicate
with each other in order to sort out these situations. In fact, if there
are simultaneous proceedings ongoing in two separate states, then those
state courts are required to communicate with each other. The
family court requires that information be submitted to the court which
includes information about the child’s residence, names and addresses of
persons in the child’s residence; any current or pending litigation
involving the child. Clearly it is imperative that all facts the parties
wish to have made known to the court are provided immediately since this
may affect the ultimate outcome of the child custody jurisdiction
determination. In
the event you find yourself in a situation where child custody is an issue
and more than one state is involved, you should immediately consult with
an attorney who is skilled and knowledgeable in this area. |
