To understand the court’s jurisdiction over a child it is important to be familiar with the jurisdictional requirements of the Uniform Child Custody and Enforcement Act (UCCJEA), which has been adopted, as of the date of this article, by 49 U.S. States, the District of Columbia, Guam, Puerto Rico and the U.S. Islands.[1] Massachusetts is the only remaining state that has yet to adopt the UCCJEA. [2]
The UCCJEA provides requirements for initial home state jurisdiction over a child and when and if a state loses that jurisdiction to make either an initial custody order, modify a prior custody order of another state, or when a UCCJEA state may take temporary emergency jurisdiction over a child having no home state jurisdiction. Once the “home state” of a child is determined by a court having proper jurisdiction, that state will have exclusive and continuing jurisdiction over that child’s custody and that state’s order shall be afforded full faith and credit and equal protection under the law so long as the said determination is in compliance with the UCCJEA. However, the court’s exclusive and continuing jurisdiction may at some point be lost to another state only upon certain circumstances set out in the UCCJEA, as discussed in detail below.
- The Initial Custody Determination
The law is clear that having mere subject matter jurisdiction upon filing is not the sole basis for jurisdiction. The UCCJEA provides the exclusive jurisdictional basis for making a child custody determination by a court of this state.[3] The UCCJEA prioritizes home state jurisdiction over all other jurisdictional bases for initial custody orders.[4] It is only when a child has no home state or the child’s home state has declined to exercise jurisdiction that a court looks at the other factors enumerated in the UCCJEA.[5] The child “home state” is defined as follows:
“the state in which a child has lived with a parent or a person acting as a parent for at least six consecutive months immediately prior to the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child has lived from birth with any of the persons mentioned.”[6]
Under Missouri law, provides that the provisions UCCJEA must be met for Missouri courts to have subject matter jurisdiction over a child custody proceeding.[7] On this jurisdictional topic, Missouri Section 452.740.1(1) mandates that Missouri must either be the child’s home state on the date of the commencement of the proceeding, or Missouri must have been the child’s home state within six months prior to the commencement of the proceeding and the child is currently absent from the state but a parent or person acting as a parent continues to live in Missouri. Further, the UCCJEA provides that Missouri courts shall not exercise jurisdiction if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child had been previously commenced in a court of another state having jurisdiction in conformity with the UCCJEA, unless the proceeding has been terminated.[8]
Prior to 2009, multiple states might have been able to assert jurisdiction to decide a child custody issue under the UCCJA.[9] Since Missouri’s repleaded the UCCJA and adopted UCCJEA, Missouri only has jurisdiction over that initial child custody order, if Missouri is the child “home state.” The UCCJEA does provide very narrow circumstances when Missouri (or any other state which has adopted the UCCJEA) can modify or take emergency jurisdiction over a child’s custody order.
Upon the date of the commencement of the proceeding in a Missouri court, Missouri is the home state of the child, or was the home state of the child within six months prior to the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.[10] The child’s home state is the exclusive jurisdictional basis for making a child custody determination by a court of this state.[11]
In child custody cases, the UCCJEA requires a statement under oath in the first pleading or in an attached affidavit.[12] The required information will provide the court with the initial facts on which to base its jurisdiction consistent with the UCCJEA and KPKA. The required information is as follows:
“the child’s present address, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during such period. The pleading or affidavit shall state whether the party:
(1) Has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, case number of the proceeding and date of the child custody determination, if any;
(2) Knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court and case number and nature of the proceeding; and
(3) Knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of such persons.”[13]
However, mere possession by a parent of the child for the preceding six months in a particular state does not automatically confer home state jurisdiction. A question of “home state jurisdiction” usually arises when one parent takes the child from the child’s home state for the purpose of avoiding jurisdiction in that state and each parent files a proceeding for an initial custody order in both states. The six-month extended home state provision of section 452.740.1 provides that “home state jurisdiction” continues for six months after a child is removed from the state but a parent continues to reside in the home state.[14]The child may not physically be in the state when the parent residing in the home state brings the custody action within six months of the child’s removal; but for the home state provision to apply, the child had to reside in the state prior to removal.[15]
To modify an existing custody order from another state, see section VII on Out-of-State orders.
- Emergency Custody Jurisdiction (initial custody order or modification) where Missouri is not the “home state” of a child under the UCCJEA
The UCCJEA adopted by 49 states and its territories, defines temporary emergency jurisdiction and how it can become a final determination. Under the UCCJEA, a state that does not otherwise have jurisdiction may enter a temporary emergency order if the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or a parent of the child, is subjected to or threatened with mistreatment or abuse.[16] After issuing the order, the state court should determine whether an existing custody order from another state is in effect. If there is an existing order, the emergency court must allow a reasonable time period for the parties to return to the state having jurisdiction and argue the issues with the court with jurisdiction. [17]If there is no previous child custody order in existence, the emergency court’s order will remain in effect until a determination is made in a court having home state jurisdiction over the child. Id. If no determination is made and the emergency court’s state becomes the home state of the child, the emergency order becomes a final determination of custody.[18]
Litigation over home state jurisdiction is very fact driven and can become very complex. However, the JCCJEA provides the state with priority for determining which court has the home state jurisdiction to make a custody determination. Once a state court has made an initial custody determination, the question becomes whether the initial custody determination is consistent with the UCCJEA and the Parental and Kidnapping Prevention Act, “PKPA,” discussed further in the next section. So long as the initial custody order is consistent with the PKPA, res judicate applies to the initial child’s home state determination. “Res judicata, which means ‘a thing adjudicated,’ is a common law doctrine that precludes relitigating of an already adjudicated claim.”[19] The doctrine of res judicata is applicable to child custody and visitation provisions, except to the extent that such provisions later may be modified pursuant to applicable statutes.[20] “Before res judicata bars a claim, the previous determination must have been on the merits of the claim.”[21] The PKPA requires a state to give full faith and credit only to those child custody determinations made consistently with its provisions.[22]
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[1] Sections 452.700 to 452.930, RSMo Cum. Supp. 2021.
[2] See the Commission of Uniform laws, Child Custody Jurisdiction and Enforcement Act – Uniform Law Commission (uniformlaws.org) https://www.uniformlaws.org/committees/community-home?communitykey=4cc1b0be-d6c5-4bc2-b157-16b0baf2c56d. Retrieved 5/30/2023.
[3] Section 452.740.2, RSMo, 2016. Burgett v. Thomas, 509 S.W.3d 840, 844 (Mo. App. W.D. 2017).
[4] Section 452.740, RSMo 2016; DeWitt v. Lechuga, 393 S.W.3d 113, 118 (Mo. App. W.D. 2013).
[5] Id.
[6] Id.
[7] Id.
[8] Section 452.765.1, RSMo 2016.
[9] Mahoney v. Mahoney, 162 S.W.3d 512, 514 (Mo. App. W.D. 2005).
[10] Section 452.750.1, RSMo, 2016.
[11] Section 452.750.2, RSMo, 2016.
[12] Section 452.780.1, RSMo, 2016.
[13] Id.
[14] Section 452.740.1, RSMo, 2016.
[15] Dewitt v. Lechuga, 393 S.W.3d 113, 119 (Mo. App. W.D. 2013).
[16] Section 452.755, RSMo 2016.
[17] Id.
[18] Id.
[19] Noakes v. Noakes, 168 S.W.3d 589, 595 (Mo. App. W.D. 2005) (Quoting Timmerman v. Timmerman, 139 S.W.3d 230, 235 (Mo. App. W.D. 2004).
[20] See, e.g., In re Marriage of Burroughs, 691 S.W.2d 470, 476 (Mo. App. E.D. 1985); C___ C___ v. J___ A___ C___, 499 S.W.2d 809, 812 (Mo. App. W.D. 1973).
[21] S.M.B. by W.K.B. v. A.T.W, 810 S.W.2d 601, 605 (Mo. App. E.D. 1991) (Quoting Owens v. Government Employees Ins. Co., 643 S.W.2d 308, 310 (Mo. App. E.D. 1982)).
[22] Glanzner v. State, Department of Social Services, Division of Child Support Enforcement, 835 S.W.2d 386, 391 (Mo. App. E.D. 1992) (holding that the PKPA, requires California to give full faith and credit to the Missouri decree because the Missouri proceedings comply with the PKPA. On the other hand, the PKPA precludes Missouri and other states from giving full faith and credit to the California decree because it did not meet any of the enumerated conditions).
[23] In re Guardianship of A.B.G., 767 N.W.2d 420 (Iowa Ct. App. 2009).
[24] Id.
[25] Id.
[26] Id.