THE UCCJA/PKPA AND JUDICIAL COMMUNICATION by William M. Hilton Certified Family Law Specialist Box 269 Santa Clara, California 95052 TEL: (408) 246-8511 FAX: (408) 246-0114 MODEM: (408) 246-0387 (2400-1200-300 N, 8, 1) 1. Law and Theory 1.1. Introduction. Reference will be made to the Uniform Child Custody Jurisdiction Act (UCCJA) at California Civil Code (CC) Sections 5150 through 5174, its counter part at 9 Uniform Laws Annotated (ULA) Sections 1 through 28 and 28 USC 1738A, the Parental Kidnaping Prevention Act (PKPA). The UCCJA has been enacted in all states except Puerto Rico. The PKPA is a federal act which superseds the UCCJA whenthere is a conflict between the two. The PKPA does not replace the UCCJA. 1.2. General Purposes of the UCCJA/PKPA Among the general purposes of UCCJA/PKPA are the following: Avoid jurisdictional competition and conflict with courts of other states in matters of child custody; Promote cooperation with the courts of sister states; Avoid relitigation of custody decisions in sisters states; Discourage continued interstate controveraies over child custody; Promote and expand the exchange of information and other forms of mutual asistance between courts concerned with the same child; and Facilitate the enforcement of custody decrees of other states. 1.3. Mandatory Intercourt Communication The UCCJA specifically requires that judicial communication and cooperation take place when CC5155 [9 ULA(6)] is invoked. The reader is refered to CC5150-CC5174 for more detail. This section, after CC5152 [9 ULA 3], should be (but seldom is) the most frequently consulted section of the UCCJA. A court is required to examine any petition in a custody matter to determine if the court (a) has jurisdiction and (b) if it should exercise that jurisdiction. To that end the court is also required to determine if there is any other action, pending or otherwise, in any other state. In a typical Law and Motion proceeding the moving papers are required to include the Declaration Under Uniform Custody of Minors Act whenever the custody of a child is before the court which provides information to the court as to whether or not there is any other action involving the children. Yet it is safe to say that 99.99% of all such papers never include that document. If the court has reason to believe that there may be actions concerning the children in other states it is required to direct an inquiry to that state. If it learns that an action is pending then California must stay its proceedings to make the following determinations: 1.3.1. Prior Action Pending Is there a prior action pending? If there are two actions, which one of them is to be accorded the priority under CC5155 [9 ULA 6]. It is to be kept in mind that California must also determine if the sister state is exercising jurisdiction substantially in conformity with the PKPA and then the UCCJA. If the sister state is not then it does not matter if their action was commenced prior to the California action. In order to achieive this California must communicate with the sister state court to learn their basis of jurisdiction, their law as to when an action is commenced, eg, filing, service or hearing, etc. 1.3.2. Action Commenced After California If the California court learns that a sister state has commenced a proceeding after California has taken jurisdiction of the matter, California is required to communicate with the sister state for the same reasons given in Prior Action Pending paragraph above. Did California in fact have jurisdictioni substantially in conformity with the PKPA and then the UCCJA? 1.3.3. Custody Decree Made While Action is Pending If California has entered a custody decree and then learns that there is an action pending in a sister state, California is required to communicate with the sister state. The statute is unclear as to what California should do and there is no known case law on this point. Presumably California should set aside its order if, under analysis, it would not have had the jurisdiction to make the order and hence it would not be enforceable in the sister state under the UCCJA or the PKPA. 1.4. Optional Intercourt Communication--Inconvenient Forum After California has assumed jurisdiction (and only after), California may decline to exercise jurisdiction on the basis of inconvenient forum. Inconvenient forum is only available to the state that is exercising jurisdiction under the UCCJA. An importaint part of the UCCJA is that while more than one state may have jurisdiction under the UCCJA, only one can exercise that jurisdiction. It has been said that CC5152 [9 ULA 3] determines whether or not a state has subject matter jurisdiction and CC5155 [9 ULA 6] deteremines which state is to exercise that jurisdiction (leaving aside, for the moment, modification of a decree). Under CC 5156 [9 ULA 7] California may decide, after consulting with a sister state, that it should decline jurisdiction. An example of this would be where a child has spent the first ten years of its life in the sister state and was taken to California without the knowledge or consent of the other parent, concealed in California for ten months and then an action filed for custody. Even though under the above example California would have jurisdiction to act and was the first in time under the rules of both states, California may wish to decline jurisdiction because of the conduct of the parent, because the sister state has more contacts with the child, etc. The Commissioners' Notes accompanying CC5156 [9 ULA 7] expressly state that courts are expected to take an active part in seeking out information about custody proceedings concering the same child pending in other states. The Notes exhort judges to read CC5155 [9 ULA 6] and CC5156 [9 ULA 7] together. The import of these two sections is to encourage judicial restraint in exercising jurisdiction whenever another state is in a better position to determine custody. The Commissioners' Notes further advise that when there is a doubt as to which is the more appropriate forum, the question may be resolved by consultation and communication among the courts involved. The PKPA defers to the UCCJA's provisions on judicial communication and adds no further mandatory communication requirements; however, fulfillment of the PKPA's purposes depends upon faithful execution of the UCCJA's provisions. 1.5. Optional Intercourt Communication--Modification CC5163 [9 ULA 14] does not mention intercourt communication in the same sense as seen in CC5155 [9 ULA 6] and CC5156 [9 ULA 7]. A reading of this section indicates that California must obtain the court records and proceedings if California is going to modify the decree of another state but it silent about intercourt communication otherwise. As modification of a sister state decree is the most common involvement of the court with the UCCJA it is felt that intercourt communication is of a greater necessity here than anywhere else. This section is probably the most abused section of the UCCJA in that the drafters of the UCCJA made it clear that once a state had made an order no other state could modify that order except under exceptional and rare circumstances. Since the inception of the UCCJA every court that has a sister state decree in front of it recites the general rule that they should not modify the decree of the sister state unless they have jurisdiction (and they all find they do) and the sister state no longer has. It is interesting how often the forum court determines that the decree state no longer has jurisdiction and therefore they can now modify the decree states order. Under the UCCJA this was presumably possible due to the unfortunate wording of CC5163(1)(a) [9 ULA 14(a)(1)] which states: "...it appears to a court of this state that the court which rendered the decree does not now have jurisdiction...". The key phrase is: court of this state. Many states, New York being a prime example, whould analyze the law as they saw it and then decide that the decree state no longer had jurisdiction. The PKPA (hopefully) has changed that as its requirement comes down to the phraseing of 28 USC 1738A(c)(1): "...such court has jurisdictioni under the law of such State;...". Here one must look to the law of the decree state. The forum state cannot use thier own law to determine if the decree state no longer has jurisdiction. If California has a New York order (as it did in Kumar V. Superior Court (1982) 32 Cal.3d 689, 186 Cal.Rptr.772) then as long as New York has jurisdiction under their own law California cannot modify that order. Because of these requirements it is most importaint that a California court communicate with the decree state court to determine the status of the particular request for modification of the decree states order that is now on the California Law and Motion calendar. Was the original order made in conformity with the UCCJA/PKPA? Does the decree state have any sort of action pending? (There is case law that holds where there is a review order the matter is pending as it is not concluded in the general sense of a "final" custody order.) What is the decree states law concerning their going jurisdiction? (Some states, such as Illinois, by statute, never let go of a case. Texas, on the other hand, again by statute, loses jurisdiction after the child has been gone for six months unless the parties agree otherwise.) 1.6. Optional Intercourt Coummunications--Emergencies The last refuge of the interstate scoundrel is the "Emergency". The writers of the Gothic novels had nothing on the authors of the horrors set forth in the attached declarations of the moving parties in California (and other state) courts when it comes to finding "Emergency Jurisdiction" in California. From a quick review of case law on emergencies it will be seen that about every conceivable means has been used to get the matter before "our" court, due to the terrible things that are happening to the poor childlren. Often there are indeed severe problems which require instant court intervention. Most, if not all, of these problems are in the home state of the child and presumably the evidence associated with these problems is there as well. If one is accusing a parent of regularly beating the child with red hot barbed wire, it is something that was probably noticed in the orginal residence (medical reports, witnesses of violence, reputation of the accused abusing parent, etc.) It is proper for California to take temporary custody under the UCCJA but it is improper to either grant a permanent order or modify an existing order under the "Emergency" section of the UCCJA. Here it would seem that the California courts would and should issue an order to protect the child and then contact the sister state to determine what they are willing to do about the alleged incident. Typically an order should be made just so long as to permit the sister state to commence its own action and then the entire matter should be transferred to that state. If the sister state then does not commence an action, California can proceed according to its own rules and do what is appropriate. 2. Practical Aspect of Intercourt Communication 2.1 Intercourt Comuunication- Statutory Language There is no specific language within the UCCJA as to "how to" communicate with the courts of a sister state. 2.2. Intercourt Communication---Practice The mechanics of the intercourt communication are best left to each court with consultation with the local family law bar. Some suggestions, which are by no means inclusive, are: 2.2.1. Diplomacy Diplomacy is a critical component in intercourt communication. If the sister state court gets the impression that a decision to exercise jurisdiciton has already been made by the judge initiating the countact and that the judge's letter or telephone call is merely perfunctory in nature, the willingness to cooperate in resolving the jurisdictional dispute will be undermined. It is to be kept in mind that the California order may have to be enforced in the sister state and to that end the communication is to be focused. 2.2.2. Telephone Conversations This has the advantage of being fast and simple and also ulcer provoking on the part of counsel. It should be used more than it is but many courts and counsel simply are not aware of or do not use the existing technology. Pacific Bell has a conference operator that will set up a conference call between any group of numbers anywhere in the world at any time that is desired. Reservations can (and should) be made in advance to ensure line availability at the time required. One of the parties (usually counsel) at each end should be designated to tape record the call and ensure that all are aware of this and that copies are distributed to all concerned. It is also possible that, with a standard headset available from a telephone source, such as Radio Shack, a court reporter can be on the line. If the call is a short and routine matter the court may wish to handle this on a one to one baisis, with notes made by the court that are provided to counsel. If the matter is a rountine one then the results should be made final. If there is a substantive decision possible as a result of the conference then counsel should be permitted to respond to the points raise by the telephone call. 2.2.3. Letters This clearly takes longer but may be more effective in that counsel can meet with the court and a letter drafted that all have taken part in. Indeed the court may require counsel to set forth their particular points in a letter to the sister state court, with each counsel having their own say. References should be made to the specific state law in question, refering to the sister state counter part and the equivalent Uniform Law Annotated. Use of Express Mail or Federal Express can shorten the time considerably. While not yet in common use, the office computing system can be used with modems to transmit documents from one court to another. 2.2.4. Briefs The courts may agree through joint order that counsel are to submit briefs on specific points, produce evidence as to an allegation, etc. After both courts have had a chance to consider the matter a joint ruling and order can be issued based on the briefs. Here the courts may consult as if they were a panel of judges reviewing a decision put before them. It may be possible that a third judge is assigned by the judges of the two courts to break the tie. Possibly a judge would be assigned this duty as a matter of course by the domestic relations department of a court or the third judge could be a judge from an entirely different jurisdiction, eg, California and Oregon are disputing jurisdiction, a third judge from Arizona is involved as a tie breaker. Common procedure between the two courts should be agreed upon before hand for such issues as findings of facts and conclusions of law, etc. 2.2.5. Role of Counsel When communication is appropriate, counsel should be required to provide the court with information as to where the other court is, who the judge is, telephone numbers and office hours of the sister state court, case name and number, etc. Counsel and the court should work together to the extent feasable at the earliest practicable time to decide upon the procedures to be used. Counsel should also supply copies of moving papers to the sister state court for their information so that the court can readily refer to these documents when they communicate with one another. It is particularly importaint that any local custom be clearly explained to the sister state court as the same meanings are not always put to the same words. Counsel should keep detailed records of efforts made to foster judicial communication and actions taken thereupon.