37 Fordham Urban Law Journal 909 (2000)

Reprinted  with permission, All Rights Reserved




Joan Zorza*


The Uniform Child-Custody Jurisdiction and Enforcement Act
("UCCJEA" or "Act") is the revised version of The Uniform Child
Custody Jurisdiction Act ("UCCJA"), which states are now being
asked to adopt immediately in its stead. The UCCJA was the origi-
nal model act for states to determine when they have jurisdiction to
decide a custody case and when they must give full faith and credit
to the custody decrees of other states. When the National Confer-
ence of Commissioners on Uniform State Laws ("NCCUSL" or
"Conference") wrote the UCCJA in 1968, it sought to correct two
major problems of its day: child abductions by family members
and jurisdictional disputes arising in interstate custody or visitation
matters. While these issues can arise independently, the NCCUSL
correctly saw the two problems as often interrelated. Indeed, more
than half of the nation's 350,000 annual child abductions occur in
the context of domestic violence, most of them perpetrated by abu-
sive fathers' These abductions have been found to be as traumatic
to children as when they are abducted by strangers, with many de-
veloping post-traumatic stress disorder. 2

This article explains exactly what the new UCCJEA does, focus-
ing on its benefits and some problem areas for battered women.
Part I discusses the history of the Act, including the difficulties
with, and the inconsistencies between, the Act's predecessors, the

*  J.D., Boston College Law School, 1981. Editor, Domestic Violence Report and
Sexual Assault Report, Liaison to the American Bar Association's Commission on
Domestic Violence, Member of the boards of the National Coalition Against Domes-
tic Violence, the New York State Coalition Against Domestic Violence and the New
York City Coalition of Battered Women's Advocates. Before moving to New York in
1990 to start the National Battered Women's Law Project, Ms. Zorza represented
more than 2000 battered women at Greater Boston Legal Services and as a clinical
supervisor at one of Harvard Law School's clinical programs. She has been a consult-
ant with the American Medical Association and the National Council of Juvenile and
Family Court Judges.

2.  See id. at 205-06.


UCCJA and the Parental Kidnapping Prevention Act ("PKPA").
Part II examines the UCCJEA, detailing the expanded options
available to battered women for temporary emergency jurisdiction,
denial of jurisdiction by courts that ordinarily hold such jurisdiction
and protections for victims and their children. Part III explains
some of the enforcement provisions of the UCCJEA. The article
suggests some changes to improve the UCCJEA and PKPA, but
concludes that despite some of the problems with the UCCJEA,
even as currently written, it is a step in improving child custody
jurisdiction and will better protect battered women and their


A.  The Supreme Court's Refusal to Resolve Important
Jurisdictional Disputes

The jurisdictional problems that arise in interstate custody dis-
putes and the inability to have custody decrees enforced by other
states became increasingly prevalent throughout the last century.
Attempts by lawyers to get the U.S. Supreme Court to resolve the
matter failed, beginning with its 1947 decision in Halvey v. Halvey, 3
which refused to require states to give full faith and credit to an-
other state's custody decree. This refusal was based on the notion
that every custody determination, whether issued as a "temporary"
or "permanent" order, was actually only a temporary order, always
modifiable, and that moving to another state constituted a change
in circumstances warranting modification. 4

Effectively, the Halvey decree rewarded losing contestants who
abducted their children and relocated across state lines. At a mini-
mum, an abducting family member was guaranteed a de novo trial
in the new state to try to gain lawful custody. 5  Further, because
any prior custody decree could not be enforced beyond the issuing
state's borders, abductors were also safe from contempt or abduc-
tion charges so long as the abductors never returned to the state
from which they had fled. 6

Additionally, if the abductors were able to successfully win cus-
tody in the new state, they were also not at risk from having the
children lawfully removed and returned to the state from which

3. 330 U.S. 610, 612 (1947) (holding that because a custody decree could be mod-
ified at any time, it is not a final judgment entitled to full faith and credit).
4.  See id. at 620 (Rutledge, J., concurring).
5.  See id. at 613.
6.  See id. at 620 (Rutledge, J., concurring).

2000]                    THE UCCJEA                      911

they fled. 7  However, as Justice Rutledge noted in his concurrence
in Halvey, should the child be taken back to the original state of
jurisdiction, it would set off "a continuing round of litigation over
custody, perhaps also of abduction between alienated parents.
That consequence hardly can be thought conducive to the child's
welfare." 8

This decision was followed by May v. Anderson, 9 in a second at-
tempt to require states to honor and enforce the custody decrees of
other states. Despite the May's dissenter's serious reservations,
this later attempt proved just as unsuccessful as the first. l0

At the time of the U.S. Supreme Court's decision in Halvey,
most abductors were fathers or grandparents, who were far better
situated than mothers to win custody in a new state for a number of
reasons. Women of the time faced even greater gender bias dis-
crimination, which impacted them financially and socially, thereby
rendering them less able to litigate their interests or be seen as
financially or socially fit.  In addition, the United States had no
awareness of domestic violence,11 further impeding women's ef-
forts to force courts to recognize abusive situations, and the need
to protect them and not to be blamed for the abuse or receive help
in becoming independent both financially and emotionally from
the abuse. In light of these circumstances, the Conference proba-
bly never guessed how the UCCJA would be used to hurt so many
mothers who later fled to protect themselves or their children from

B.  Enactment of the Parental Kidnapping Prevention Act l2

Although the UCCJA was introduced in 1968, states were slow
to adopt it throughout the next twelve years. Those states that did
adopt the UCCJA often made alterations. some quite substantial

7. With no legal remedy available to enforce the original custody decree in a new
state, another effect of these laws was to encourage "self-help" remedies by the left-
behind parent whose children were abducted as the only way to enforce their rights.
8.  Halvey, 330 U.S. at 619 (Rutledge, J., concurring).
9. 345 U.S. 528 (1953). There were three dissenters in the case: Justices Jackson
Reed and Minton. See id. at 536, 542.
10. See Kovacs v. Brewer, 356 U.S. 604 (1958); see also Ford v. Ford, 371 U.S. 187
CIAL CHANGE 12 (1992). The country's awareness and knowledge of child abuse wa?
still in its infancy, as Dr. C. Henry Kempe only introduced the phrase "battered child
syndrome" in 1962. See C.H. Kempe et al.. The Battered Child Syndrome, 181 JAMA
107-12 (1962). In fact, not one battered women's shelter existed at the time.
12. 28 U.S.C. § 1738A (1994).


in their own versions. These practices produced conflicting judi-
cial decisions about whether a state had to recognize another
state's decree, even when both states' UCCJA versions differed
only slightly. As a result, far too few custody decisions were being
honored and enforced by courts of other states.

To correct this problem, Congress enacted the PKPA.13  The
PKPA forced every state to give full faith and credit to any custody
decree, no matter in which state the decision was rendered, pro-
vided it met due process 14 and the PKPA jurisdictional require-
ments.15  The PKPA also prevented other states from modifying a
custody order issued by any other state, with only a few excep-
tions.16  It also added various enforcement mechanisms for use
against abductors, including: (1) the use of the Federal Parent Lo-
cator Service to locate abductors; l7 and (2) provision for issuing
federal Unlawful Flight to Avoid Prosecution 18 ("UFAP") arrest
warrants under the Fugitive Felon Act, 19 for child abductors fleeing
across state or international lines to avoid prosecution on state fel-
ony abduction charges.

The PKPA, as a federal law, preempts any state's enacted
UCCJA whenever the two are inconsistent. 20  Both the PKPA and
UCCJA are jurisdictional in that they determine whether a court in

13. See id.  When Congress enacted the PKPA in December of 1980, 43 states had
adopted the UCCJA. By 1980 there was enough awareness of domestic violence that
Congress could and should have taken it into account. However, domestic violence
issues were never raised or considered in it. See Patricia M. Hoff, The ABC's of the
UCCJEA: Interstate Child-Custody Practice Under the New Act, 32 FAM. L.Q. 267, 268
14. The PKPA requires that, before a court can decide any custody matter, reason-
able notice and opportunity to be heard has been given to all contestants, parents
whose parental rights have not been terminated and to anyone actually having physi-
cal custody of the child.  See 28 U.S.C. § 1738A(e).
15. Specifically, for initial custody determinations, the PKPA prioritizes home
state jurisdiction over significant continuing jurisdiction and otherwise repeats the
temporary and no other state jurisdictional requirements of the UCCJA. See id.
§ 1738A(e).
16. See id. The exceptions are if all of the contestants and the child have moved
from the initial state or the initial state has declined jurisdiction. See id.
17. See 42 U.S.C. §§ 654(17), 663 (1994).
18. 18 U.S.C. § 1073 (1994). Once a UFAP warrant has been issued, the F.B.I, can
become involved in searching for the abductor.
19. Id.
20. See U.S. CONST. art VI, § 2 (identifying the supremacy of federal law).  See,
e.g., In re Clausen, 502 N.W.2d 649 (Mich. 1993); Hangsieben v. Oliver, 502 N.W.2d
838 (N.D. 1993); Michalik v. Michalik, 494 N.W.2d 391 (Wis. 1993); Shute v. Shute,
607 A.2d 890 (Vt. 1992); Griffin v. District Court, 831 P.2d 233 (Wyo. 1992); Archam-
bault v. Archambault, 555 N.E.2d 201 (Mass. 1990); Marks v. Marks, 315 S.E.2d 158
(S.C. Ct. App. 1984); Serna v. Salazar, 651 P.2d 1292 (N.M. 1982).

2000]                    THE UCCJEA                      913

a particular state has the power to decide a case, not how the court
should decide the actual custody issues being contested. The court
may have jurisdiction under state law, for example, to decide the
divorce between the parties, but may not have jurisdiction under
the PKPA/UCCJA to decide the custody issues regarding the par-
ties' children.  Similarly, the court may have PKPA/UCCJA juris-
diction to decide custody of one child, but not that of another child,
since the jurisdictional requirements are specific to each child. 21
Courts have a real incentive to follow jurisdictional rules because
their orders will not be entitled to full faith and credit when they
do not have jurisdiction.

Specifically, the PKPA preempts the UCCJA by not allowing
courts making initial custody decisions to consider significant con-
nection jurisdiction in cases when there is a home state jurisdic-
tion. 22   It  prevents  any  state  from  exercising  modification
jurisdiction when there is already a pending proceeding in a state in
accordance with the PKPA/UCCJA, 23 and further gives the original
state the right to exclusive jurisdiction to modify any of its orders
provided the child or one of the contestants continued to reside in
that stated. 24


A.  Re-Examination of the UCCJA

While the Conference knew that the UCCJA would have to be
amended to conform with the PKPA, it was ironically the Uniform
Interstate Family Support Act," which governs paternity establish-
ment and child support determinations, collection and enforce-
ment, that was the impetus for the reexamination of the UCCJA.
The Conference began reexamination of the UCCJA in 1994, and
soon realized it must harmonize the UCCJA with the full faith and

21. See 28 U.S.C. § 1738A(c).
22. See id. § 1738A(d). See also infra Part II.C. (describing the difference between
home state and significant connection jurisdiction).
23. 28 U.S.C. § 1738A(d). The U.S. Supreme Court held that the PKPA does not
create a cause of action in federal court to resolve which of two competing custody
decrees is valid, thereby ending the litigation that was creeping into federal court to
resolve these disputes. See Thompson v. Thompson, 484 U.S. 174 (1988).
24. See 28 U.S.C. § 1738A(d).
25. See John J. Sampson, Uniform Interstate Family Support Act (1996) (with More
Unofficial Annotations), 32 FAM. L.Q. 390 (1998). See also The Nat'1 Conf. of
Comm'rs on Unit. St. Laws, Uniform State Law Helps Enforce Child Custody Orders
(visited Nov. 4, 1999) <http://www.nccusl.org/pressrel/uccjea99.htm>.


credit mandate of the Violence Against Women Act ("VAWA"), 26
which was enacted on September 13, 1994, and requires states to
honor and enforce orders of protection, including ex parte orders.
The Conference would also need to decide whether to cover tribal
court orders, resolve the ambiguities about which custody proceed-
ings are covered, clarify that the "best interests" language in the
UCCJA 27 was not meant to open up the merits of the case, resolve
whether orders of protection trigger emergency jurisdiction, deter-
mine when courts have declined jurisdiction, resolve confusion
about how long temporary jurisdiction lasts and finally, determine
how to effectively enforce orders quickly and uniformly throughout
the country. While the NCCUSL continued to ignore the problems
of domestic violence for anyone except those involving the particu-
lar child, domestic violence advocates 28 forced the Commissioners
to make a number of concessions in its final version to include
some protections for victims of domestic violence. While these
changes are rather minimal, in part because of PKPA limitations,
they will help battered women and their children. These changes
are discussed in the remainder of the article.

The Conference's final version has been met with remarkable
success. To date, at least fifteen states have adopted the new legis-
lation,29 and many more states are actively considering enactment
during their current or next legislative session. 30

26. 18 U.S.C. §§ 2265-2266 (1994) (requiring states to honor and enforce orders of
protection, including ex parte orders). Although the full faith and credit mandate of
VAWA specifically exempts custody orders, certain practice orders, including stay-
away from a child orders, might be inconsistent with the UCCJA.
27. See UCCJA § 3(a)(2) (staling that "it is in the best interest of the child that a
court of this State assume jurisdiction because (i) the child and his parents, or the
child and at least one contestant, have a significant connection with this State, and (ii)
there is available in this State substantial evidence concerning the child's present or
future care, protection training, and personal relationships").
28. These advocates included Lesley Orloff, then of AYUDA (an immigration
program for battered women in Washington D.C) and a small group of domestic vio-
lence advocates (including the author) acting through Roberta Valente, then staff di-
rector of the American Bar Association's Domestic Violence Commission.
29. See, e.g., 1999 Ala. Acts 438; 1999 Ark. Acts 668; 1999 N.D. Laws 147 (S.B.
2152). During the authoring of this article. New York State vetoed the UCCJEA. See
N.Y.S. Bills & Statutes, Veto Message No. 64 (visited Jan. 13, 2000) <gopher://>.
30. See The Nat'1 Conf. of Comm'rs on Unif. St. Laws, A Few Facts About the
UCCJEA (visited Nov. 1, 1999) <http://www.nccusl.org/factsheet/uccjea-fs.html>.

2000]                    THE UCCJEA                      915

B.  The UCCJEA Notice Requirements

The UCCJEA provides that any first child-custody determina-
tion made concerning a particular child under age 18 as long as
the jurisdictional requirements are met binds all parties with no-
tice. This specifically includes child custody provisions in orders of
protection. 31  This notice should be given to any parent whose
rights have not been terminated and to any other person 32 having
physical custody of the child or who had physical custody of the
child barring temporary absences for six consecutive months within
the year prior to beginning the custody proceeding and has either
been awarded legal custody by a court or claims a right under the
law of the state to legal custody. 33  Notice, in a way that is reason-
ably likely to give actual notice, can be given to any person outside
of the state under either state's notice laws, "but may be by publi-
cation if other means are not effective." 34  This change will enable a
fleeing battered woman to protect herself against her abuser by
being able to serve him and causing him to be bound by any deci-
sion later made in the case. 35  It should also prevent her from being
subject to federal kidnapping charges' in cases where he has filed
an action in the home state without ever giving her notice, but the
court nevertheless defaults her and awards him custody. 37

C.  UCCJEA Initial Jurisdictional Criteria

Except in emergencies, an initial custody determination must be
made by a court having one of the UCCJEA's four jurisdictional
criteria, some of which are new and all of which are statutorily pri-
oritized.38 Parties cannot confer jurisdiction on a court that does
not otherwise meet one of these criteria; however, emergency juris-

31. See UCCJEA §§ 102(4), 205 cmt.
32. See id. § 102(12) (clarifying that "person" includes agencies of states involved
with custody of a child).
33. Cf. id. § 102(13) (noting that "'person acting as a parent' means a person,
other than a parent, who . . . has physical custody . . . [or] has been awarded legal
34. Id. § 108(a).
35. See id. § 108. He would also be bound if he appeared, unless it was a special
appearance. See id. § 109(a),
36. While 18 U.S.C. § 1204 provides a defense to someone fleeing a pattern or
incident of domestic violence, it does not mean that the charges will not be filed. See
18 U.S.C. § 1204(c)(2).
37. Although the UCCJEA explains that the "[pjhysical presence of, or personal
jurisdiction over, a party or the child is not necessary or sufficient to make a child-
custody determination." UCCJEA § 201(c).
38. See id. § 201 (a).


diction, while largely eliminated for initial permanent determina-
tions, 39 can often be used  to obtain temporary orders  and
modifications. 40  The four types of jurisdiction are "home state,"
"significant connection,"  "appropriate forum,"  and  "no other

Home State Jurisdiction: As required by the PKPA, the UCCJEA
states that if the child involved in the custody dispute has a home
state, only that state may make the initial custody determination,
unless the home state declines jurisdiction. A child's temporary
absences from the state are not relevant to this determination. A
child's home state keeps its status for six months after a child
leaves, regardless of why the child has left, 41 provided a parent or
person acting as a parent remains in the home stated Unless act-
ing as a parent, grandparents possessing visitation are not consid-
ered "contestants" for purposes home state retention. 43

Significant Connection Jurisdiction: As under the PKPA, when
there is no home state or the home state court has declined juris-
diction, a state with significant connection jurisdiction is permitted
to preside over a custody determination. In contrast to the old
UCCJA, the child's presence is not required for there to be signifi-
cant connection jurisdiction, and the "best interests" and "present
or future care" language has been eliminated.44

More Appropriate Forum Jurisdiction: A court in a state that is
the appropriate forum may do so only if courts having home state
or significant connection jurisdiction have decided to exercise it. 45

No Other State Jurisdiction: Only if no court of any other state
has jurisdiction on any of the three previous jurisdictional criteria
may a court exercise no other state jurisdiction to deal with these
"vacuum" situations. 46 This type of jurisdiction would enable a
court to take jurisdiction in a custody action between the parents

39. But see infra Part II.D.
40. See id.
41. Under the UCCJA, a state could only remain a child's home state for six
months after the child left because of wrongful removal or retention. See UCCJA
§ 3(a)(l).
42. See id. §§ 201, 208 (discussing declining jurisdiction for wrongful removal).
43. However, a recent change to the PKPA appears to preempt this. See 28 U.S.C.
§ 1738A(b)(2) (1999).
44. See UCCJEA § 201(a)(2) & cmt.
45. See id. § 201(a)(3).
46. See id. § 201(a)(4).

2000]                    THE UCCJEA                      917

who work for a traveling circus, whose child has never spent, for
example, more than two weeks per year in the same state."
Once a state court has made an initial child-custody determina-
tion consistent with one of these four jurisdictional requirements,
the issuing court retains exclusive continuing jurisdiction with the
following exceptions: (1) under certain exceptions when a court of
another state has temporary emergency jurisdiction; 48  (2) when the
issuing court "or the court of another State determines that the
child, the child's parents, and any person acting as a parent do not
presently reside in" 49 the issuing state; or (3) when a court of this
state finds "that neither the child, the child and one parent nor the
child and a person acting as a guardian have a significant connec-
tion with this state and that substantial evidence is no longer avail-
able in this state concerning the child's care, protection, training
and personal relationships. 50 This section is necessary to bring
this act in compliance with section 1738(d) of the PKPA, which
prevents any other state from modifying an issuing state's custody
decree except when all of the parties and child have left the state,
unless the issuing state has declined jurisdiction.

D.  Temporary Emergency Jurisdiction

Temporary emergency jurisdiction only arises in the extraordi-
nary circumstances where a child is present in a state and it permits
that state's court to issue only short-term orders. 51  However, the
UCCJEA does permit a court to exercise this type of jurisdiction in
an emergency to protect the child, its siblings or its parents who are
subjected to or threatened with mistreatment or abuse. This is a
major improvement over the comparable sections in both the
UCCJA 52 and the PKPA, 53  which only permit jurisdiction to be as-
sumed to protect the particular child in question, and not a parent
or sibling.

If no previous custody determination has been made, and no
child-custody proceeding is commenced in a court having jurisdic-
tion to make an initial child-custody determination, the temporary

47. Many law school exam-like scenarios are possible, for example, a custody fight
over a baby born to two American parents on a Soviet spacecraft or U.S. Navy sub-
marine in international waters.
48. See discussion infra Part II.D.
49. UCCJEA § 202(a)(2).
50. Id. § 202(a)(l).
51. See id. § 204 & cmt.
52. UCCJA § 3(a)(3).
53. 28 U.S.C. § 1738A(c)(2)(C) (1994).


order made under the temporary emergency jurisdiction can be-
come a final order, but only if it so provides, once the deciding
state becomes the child's home state. 54  However, if there is a prior
custody decree that is entitled to be enforced or an action is filed in
a court having jurisdiction to make an initial child-custody determi-
nation, the court with emergency jurisdiction must do two things.
First, it must specify in the temporary emergency order a period of
time that the court considers adequate to allow the person seeking
the emergency order to obtain an order from the state having ini-
tial custody jurisdiction. 55  Second, the court "shall immediately
communicate with the court of that State to resolve the emergency,
protect the safety of the parties and the child, and determine a pe-
riod for the duration of the temporary order." 56

Once factual findings or rulings of law have been made after no-
tice and opportunity to be heard in a custody or other proceeding
entitled to full faith and credit, for example, in an order of protec-
tion case, no court may re-litigate the issues decided. 57  Thus, a
temporary emergency jurisdiction can make a final ruling as to the
underlying abuse. It also will halt the practice of re-litigating the
abuse finding on the theory that the allegation was only made for
tactical advantage or to alienate the child from the other parent.

This new language in the UCCJEA is a significant improvement
for battered women over treatment allotted under the original
UCCJA. For example, it permits a court of another state to assume
temporary jurisdiction when a parent removes herself to another
state when she is being battered or threatened with abuse, and en-
ables her to protect all of the children when only one is being
abused. In addition, it tells both courts that safety of the parties
and child is the first consideration.

However, there are serious deficiencies as well. Forcing women
to rely on a judge to decide whether the temporary order may be-
come permanent leaves the battered woman or protective parent at
the mercy of a judge, who may fail to find that an emergency exists,
or may fail to finalize the order because he or she believes there is
a minimal likelihood of future danger, a common judicial failing. 58

54. See UCCJEA § 204(b).
55. See id. § 204(c).
56. Id. § 204(d).
57. See id. § 204 cmt.
BIAS STUDY OF THE SUPREME JUDICIAL COURT 90-91 (1989) (staling that the Massa-
chusetts Gender Bias study found that judges expect more collaboration in omestic
violence cases than they do in other serious crimes, and that they often asked inappro-

2000]                    THE UCCJEA                      919

Nor will she be protected if her abuser initiates (or re-initiates)
litigation before she has been gone for six months, and it may not
protect her if she is forced to flee to yet another state. Similarly,
the new language will not help in all emergency situations where
she acts to protect someone who is not her and the abuser's child.
For example, siblings are not defined in the statute, and only in a
state that otherwise adopts a broad construction of that term would
half- and step-siblings be included. Without a broad construction,
emergency jurisdiction will not be able to protect a mother from
being treated as a wrongful abductor in a case filed by her current
husband when she has fled with all of her children because her
prior husband was sexually abusing his child. It is even less likely
to protect her if she fled with all children in an attempt to protect
an abused niece, nephew, grandchild or foster child in her care, or
her own parent or sibling who is being severely abused by her hus-
band. 59  Regardless of whether the emergency is covered under
section 204, including the state's definition of "sibling," it may still
be possible for her to convince the court that issued the initial de-
cree to decline jurisdiction in a case where the abuse is particularly
severe. 60

Unfortunately, although the comments make it clear that section
208 of the UCCJEA should not be used to harm protective par-
ents, 61 section 208(c) makes it extremely risky for a battered wo-

priate questions indicating that the victim deserved to be hit or had provoked the
abuse, or that they felt domestic violence wastes the court's time). The authors assert
that judges scrutinized mothers more closely than fathers and held the women to a
much higher standard. See id. at 63, 73. Judges also often ignored any domestic vio-
lence in making custody awards. See id. at 73.  Similarly, the New York study found
that battered women trying to protect themselves and their children from the abuse
are frequently not helped by courts and are treated as unstable or hostile for moving
or preventing a child from seeing an abusive father.  See Lynn H. Shafran, Docu-
menting Gender Bias in the Courts: The Task Force Approach, 70 JUDICATURE 280,
286 (1987). Custody courts are even more reluctant to make findings that a father has
sexually abused a child, and are more likely to award a father who sexually abuses his
child full custody than one who does not, and in any case grant him unsupervised
access to the children. See Marsha B. Liss & Geraldine Butts Stahly, Domestic Vio-
lence and Child Custody, in BATTHRING AND FAMILY THERAPY: A FEMINIST PER-SPECTIVE 175, 183 (Marsali Hansen & Michele Harway eds., 1993).
59. Notwithstanding the UCCJEA's inability to protect her in such a situation, a
necessity or justification defense should protect her from any criminal charges.
60. See infra Part II.G.
61. Specifically, the section states:
The focus of this section is on the unjustified conduct of the person who
invokes the jurisdiction of the court. A technical illegality or wrong is insuf-
ficient to trigger the applicability of this section. This is important in cases
involving domestic violence and child abuse.  Domestic violence victims
should not be charged with unjustifiable conduct for conduct that occurred


man who has fled abuse to seek protection under the court's
temporary emergency jurisdiction. This is because the court may
assess her with all of the opponent's "necessary and reasonable ex-
penses" if the court declines jurisdiction or stays her proceeding. 62
Her risk may be exacerbated because many batterers deliberately
threaten to, and in some instances, drive their victims into poverty
or even homelessness,63 even if it also may make them destitute
themselves. Such an abuser, though taking a calculated risk, may
deliberately escalate the violence to force his victim to flee, and
then purposely drive up his expenses to further punish and control
her.  Even if she ultimately prevails, she will have been further
emotionally drained by the flight and litigation, possibly impairing
her parenting abilities. 64

E.  Jurisdiction for Modifying Custody Decrees

Except under the limited circumstances, when temporary emer-
gency jurisdiction exists, no other state's court may modify an issu-
ing court's child-custody determination unless it has jurisdiction to
make an initial child-custody determination and one of two deter-
minations are made. 65  Specifically, the issuing court must decide
either that it no longer has exclusive continuing jUrisdiCtion66 or
that the would-be modifying state would be a more convenient fo-

in the process of fleeing domestic violence, even if their conduct is techni-
cally illegal. Thus, if a parent flees with a child to escape domestic violence
and in the process violates a joint custody decree, the case should not be
automatically dismissed under this section. An inquiry must be made into
whether the flight was justified under the circumstances. . . .
UCCJEA § 208 cmt.
62. Section 208(c) makes her vulnerable to being considered the party who wrong-
fully removed or retained a child if the court does not believe how serious the victim's
fears were or naively assumes that the police could have afforded adequate protec-
tion. Specifically, section 208(a) of the UCCJEA says that someone seeking unsuc-
cessfully to invoke jurisdiction can be assessed "necessary and reasonable expenses
including costs, communication expenses, attorney's fees, investigative fees, expenses
for witnesses, travel expenses, and child care during the course of the proceedings,
unless the party from whom fees are sought establishes that the assessment would be
clearly inappropriate." UCCJEA § 208(a).
63. Joan Zorza, Woman Battering: A Major Cause of Homelessness, 25 CLEARING-
HOUSE REV. 421, 421-22 (1991); Joan Zorza, Batterer Manipulation and Retaliation in
the Courts: A Largely Unrecognized Phenomenon Sometimes Encouraged by Court
Practices, 3 DOMESTIC VIOLENCE REP. 67, 75 (1998).
65. See UCCJEA § 202(b).
66. See id. § 202(a).

2000]                    THE UCCJEA                      921

rum. 67  Alternately, in situations where all parties and the child
have moved from the state, either the issuing or would-be-modify-
ing court can determine that the child, the child's parents or any
other person acting as a parent do not presently reside in the other
state.  In the absence of an emergency, the would-be modifying
court is prohibited from making any custody determinations except
as to whether all of the contestants have moved from an exclusive
continuing jurisdiction state, a determination that either court is
permitted to make. 68

F.  Judicial Communication and Cooperation

A primary goal of both the UCCJEA and PKPA is to avoid si-
multaneous proceedings in different states or the wrongful modifi-
cation of a court order of a previous state by a court of a new state.
One of the key mechanisms that the UCCJEA has implemented to
prevent this from occurring is mandating that the courts involved
communicate with each other. 69  The changes in the UCCJEA,
however, give the courts fewer situations when they will be re-
quired to do so, having resolved many of the ambiguities created
by the UCCJA.70  The times when communication will be required
will likely occur when there is no home state, no state with exclu-
sive continuing jurisdiction, more than one significant connection
state or, in cases involving temporary emergency jurisdiction.

In instances where a court does not have jurisdiction, but feels it
should assume it to, for example, protect someone, it should stay
its proceeding, but ask the court that does have jurisdiction to de-

67. See infra Part II.G.I.
68. See UCCJEA § 110 cmt. The UCCJEA provides no guidance except for judi-
cial communication on how to resolve disputes when two courts make contrary deter-
minations as to whether all parties have moved from the state, particularly when the
determinations are made simultaneously. However, this is only a problem if the home
state determines that all parties have not all left, whereas the other state determines
that the parties have all left. When the courts have made contradictory findings, the
other state can assume jurisdiction because the home state will have effectively de-
clined jurisdiction.
69. Other mechanisms include prioritizing home state jurisdiction, creating the ex-
clusive continuing jurisdiction provisions, restricting when states may modify, requir-
ing all parties to disclose any information about other cases having courts examine
those documents to see whether another state already has jurisdiction, and mandating
that the courts involved communicate with each other. See generally Part II.
70. For example, by prioritizing home state over significant connection jurisdic-
tion, courts will know which state is entitled to make an initial custody determination
since only one state can be the child's home state at any point in time.


dine because it is an inconvenient forum.71  The parties to the suit
may be allowed to participate in this communication.72  However,
if they "are not able to participate . . . they must be given an oppor-
tunity to present facts and legal arguments before a decision on
jurisdiction is made." 73  Furthermore, a retrievable record must be
made and the parties must be promptly informed of the communi-
cation and given access to the record.74  Modern technology can be
employed for the purpose of communication;75  not only may wit-
nesses testify by telephone, audiovisual or other electronic means,
but documentary evidence transmitted by technological means
from another state to the court is admissible.76

Specific provisions permit the court to communicate with foreign
courts, or, when states opt to recognize tribal orders, tribal courts. 77

G.  Declining Jurisdiction

As under the UCCJA, the UCCJEA provides that a court with
jurisdiction may decline to exercise it for two reasons:  inconve-
nient forum, 78 which can be done at any time, 79 and unjustifiable
conduct. 80  However, both grounds have been altered, in part to
take domestic violence into account.

71. See UCCJEA §207(a); see also supra Parts II.C-D.  Section 112 of the
UCCJEA permits a court to ask another court to order an evaluation, hold an eviden-
tiary hearing, conduct discovery, order any party or person having physical custody of
the child to appear with or without the child or forward certified copies of transcripts,
evidence or custody evaluations. The court must preserve copies of the records until
the child is 18 years old, and when requested by a court or law enforcement official of
another state, forward a certified copy of those records. For domestic violence victims
in hiding, the requirement in section 112(d) that law officers of this state can request
records may greatly endanger them. Also potentially troublesome is the fact that the
court can assess "[tjravel and other necessary and reasonable expenses incurred" for
our-of-state discovery or evidentiary hearings. UCCJEA § 112(c).
72. See UCCJEA § IIO(b) (while not completely upholding Yost v. Johnson, 59]
A.2d 178 (Del. 1991), the court held that it was error not to allow both parties to
participate in the judicial communication).
73. Id.
74. See id. § II0(d).  Courts may communicate in other circumstances, e.g., one
court could ask another one to schedule an evidentiary hearing to obtain the testi
mony of a witness who lives in the second state. See id. § III.
75. See id. § lll(b).
76. See id. § lll(c).
77. See id. § 110 cmt.
78. See id. § 207.
79. See id. § 207(a).
80. See id. § 208(a).

2000]                    THE UCCJEA                      923

1.   Declining Jurisdiction for Inconvenient Forum

A court can decline jurisdiction because it is an inconvenient fo-
rum upon a motion of a party, the court's own motion, or at the
request of another court (but no longer at the request of a guardian
ad litem). 81  Declining jurisdiction in the custody matter does not
mean that the court would have to decline jurisdiction in the di-
vorce or another proceeding, or all aspects of the proceeding; 82
however, once a court has declined custody jurisdiction, it should
stay the custody matter upon condition that it is commenced in the
appropriate designated state, imposing any other conditions that
the court considers reasonable. 83  In deciding whether to decline
jurisdiction, a court is required to permit the parties to submit in-
formation and consider all relevant factors, including: (1) whether
domestic violence has occurred and is likely to continue, and which
state could best protect the parties and child; 84  (2) how long the
child has lived outside this state; (3) how far it is between the
courts; (4) the relative finances of the parties; (5) any agreement of
the parties as to which state should hear the case; (6) the nature
and location of the evidence needed to resolve the case (including
the child's testimony); (7) the ability of the court to decide the is-
sues expeditiously and the procedures necessary to present the evi-
dence; and (8) how familiar each court is with the facts and issues
in the pending litigation. 85

Not only are domestic violence and safety listed as factors, but
the relative financial circumstances of the parties must be consid-
ered, which often is a critical issue for battered women, who tradi-
tionally have far less access to finances, particularly when they
must flee their abusers. Health of the parties is another specifically
mentioned factor in the commentary after this section, another is-
sue often relevant to victims of abuse because physical, emotional
or sexual abuse can cause long-term or permanent physical or psy-
chological injuries. Courts are urged not to divide custody of all
the children amongst different courts, but also to remember that it

81. See id. § 207(a); cf. UCCJA § 7(b) (specifically including a guardian ad litem).
82. See id. § 207(d) (noting that a court might retain jurisdiction to determine pa-
ternity, divide property or order child support, but relinquish the custody aspect of a
83. See id. § 207(c).
84. Indeed, this is the first listed factor in section 207(b), thereby finally recogniz-
ing its importance.
85. See id. § 207(b)


may be desirable not to lose child support collection possibilities,
two issues that may affect battered women and their children.86

2.   Declining Jurisdiction for Reason of Conduct

In contrast to the UCCJA, the UCCJEA mandates that if a state
court has jurisdiction, except in temporary emergency jurisdiction
situations, the court must decline jurisdiction when a person seek-
ing to invoke its jurisdiction has engaged in unjustifiable conduct,
with three exceptions. 87  The court need not decline jurisdiction by
reason of conduct if the parents and all persons acting as parents
agree to the acceptance of jurisdiction, 88 no court of any other state
would have initial, exclusive continuing or modification jurisdic-
tion, 89 or the court of the state otherwise having jurisdiction deter-
mines that this state is the more appropriate forum. 90  Even if
jurisdiction is declined, the court may retain it until jurisdiction is
assumed in the other court, or so that it can issue temporary orders
to prevent a repetition of the unjustifiable conduct or to ensure the
safety of the child. 91

Unjustifiable conduct includes "removing, secreting, retaining or
restraining" a Child.92  However, in language specifically favorable
to battered women, the comment to the statute reads:
A technical illegality or wrong is insufficient to trigger the appli-
cability of this section.  This is particularly important in cases
involving domestic violence and child abuse. Domestic violence
victims should not be charged with unjustifiable conduct for
conduct that occurred in the process of fleeing domestic vio-
lence, even if their conduct is technically illegal. Thus, if a parent

86. See id. § 207 cmt. Child support may be too dangerous for a battered women
to pursue, particularly if the system cannot adequately protect her. See Paula Rob-
erts, Pursuing Child Support for Victims of Domestic Violence, in BATTERED WOMEN,
ed., 1999); Evan Stark & Anne H. Flitcraft, Spouse Abuse, in VIOLENCE IN AMERICA:
A PUBLIC HEALTH APPROACH 123, 124, 140-41, 143 (Mark L. Rosenberg & Mary
Ann Fenley, eds., 1991); Jody Raphael, Keeping Women Poor: How Domestic Vio-
lence Prevents Women From Leaving Welfare and Entering the World of Work, in BAT-
(Ruth A. Brandwein, ed., 1999).
87. See UCCJEA § 208(a).
88. See id. § 208(a)(l). But note that this does not include the state or agency or
the guardian ad litem. This provision is likely to disadvantage battered women, who
are far less likely to have equal bargaining power in negotiating or refusing to negoti-
ate on acquiescence of jurisdiction.
89. See id. § 208(a)(3).
90. See id. § 208(a)(2).
91. See id. § 208(b).
92. See id. § 208 cmt.

2000]                    THE UCCJEA                      925

flees with a child to escape domestic violence and in the process
violates a joint custody decree, the case should not be automati-
cally dismissed under this section.  An inquiry must be made
into whether the flight was justified under the circumstances of
the case. However, an abusive parent who seizes the child and
flees to another state to establish jurisdiction has engaged in un-
justifiable conduct and the new state must decline to exercise
jurisdiction under this section. 93

Following the International Child Abduction Remedies Act, 94 a
state court must assess all reasonable costs and fees to be paid to
the parent who establishes that jurisdiction was based on unjustifi-
able conduct. In cases where a fleeing victim sought the court's
temporary emergency jurisdiction but the court declined jurisdic-
tion or stayed its action, the court should presumptively assess all
costs against the wrongful party (i.e., the parent who wrongfully
fled, as determined by the court's denial of accepting temporary
emergency jurisdiction), unless the party from whom the fees are
sought can establish that the assessment would be clearly inappro-
priate. 95  This puts a battered woman or mother of an abused child
at enormous risk when she attempts to claim temporary emergency
jurisdiction. It greatly increases the chance that an abusive father,
particularly if he has greater resources, 96 will be encouraged to ag-
gressively litigate, in his effort to make her liable for all of his "rea-
sonable  expenses  including  costs,  communication  expenses,
attorney's fees, investigative fees, expenses for witnesses, travel ex-
penses, and child care during the courts of the proceedings." 97  Bat-
terers, who are known to retaliate by abusing the judicial process
to further control and demoralize their victims or drive them into
economic ruin, 98 may well use this penalty to drive their victims
into flight or hiding, and then have the judicial system simultane-
ously reward themselves and punish their victims. California has
attempted to decrease this possibility for abuse of this section by
batterers. 99

93. See id.
94. 42 U.S.C. § 11607(b)(3) (1994).
95. See UCCJEA § 208(c).
96. See, e.g., Liss & Stahly, supra note 58, at 179, 181 (stating that batterers are far
less likely to pay child support than other men as part of their tactic of depriving their
partners of access to money).
97. UCCJEA § 208(c).
98. See Zorza, Batterer Manipulation and Retaliation, supra note 63, at 73.
99. California has added language to its act's counterparts of section 208(c) of the
UCCJEA to clarify much more strongly that battered women and protective parents
should not be punished for fleeing from abuse.


H.  Affidavit and Address Confidentiality

The UCCJEA attempts to get each party in its first pleading to
provide under oath essentially the same information that section 9
of the UCCJA required: (1) a child's present address or wherea-
bouts; (2) places where the child lived during the last five years and
the names and present addresses of the persons with whom the
child lived; (3) whether the party has ever participated in any ca-
pacity in any custody proceeding concerning the child and, if so,
which court, docket number and date of any child-custody determi-
nation; (4) information about any other related proceeding, includ-
ing those for enforcement, protective orders, termination of
parental rights and adoptions; and (5) the names and addresses of
anyone not a party who has physical custody of the child or claims
rights to legal or physical custody or visitation with the child.100
Likewise, it places a continuing duty on each party to update the
information about "any proceeding in this or any other State that
could affect the current proceeding.101

However, the UCCJEA notice requirements make two changes,
the first in partial response to those advocates asking for protec-
tions for battered women. That change is an option, which if taken
by a state, can help victims of domestic violence by incorporating
"local law providing for the confidentiality of procedures, ad-
dresses, and other identifying information,"102  including proce-
dures to seal the information and not release it until "after a
hearing in which the court takes into consideration the health,
safety, or liberty of the party or child and determines that the dis-
closure is in the interest of justice." l03  The commentary to section
209 urges states that do not have procedures to keep sensitive iden-
tifying information confidential to adopt such statutory protec-
tions. As suggestions, it refers states to section 304(3) of the Model
Code on Domestic and Family Violence of the National Council of
Juvenile and Family Court Judges104 and section 312 of the Uni-

100. See UCCJEA § 209(a).
101. Id. § 209(d).
102. Id. § 209(a).
103. Id. § 209(e).
104. Subsection 3 generally provides: A petitioner may omit her or his name from
all documents filed with the court.  If a petitioner omits her or his address, the peti-
tioner must provide the court a mailing address. If disclosure of petitioner's address is
necessary to determine jurisdiction or consider venue, the court may order the disclo-
sure to be made: (a) After receiving the petitioner's consent: (b) Orally and in cham-
bers, out to the presence of the respondent and a sealed record to be made; or (c)
After a hearing, if the court takes into consideration the safety of the petitioner and
finds such disclosure in the interests of justice. See NAT'L COUNCIL OF JUVENILE AND

2000]                    THE UCCJEA                      927

form Interstate Family Support Act ("UIFSA") as possible mod-
els.105   Obviously,  states  with  identification  protections  should
consider making them stronger, and are not limited by the protec-
tions in the two suggestions given.

The second change overturns roughly half of the existing case
law106 that held that failure to comply with the affidavit require-
ments or knowingly submitting false information was a jurisdic-
tional defect, allowing jurisdiction to be declined and the case
dismissed, and that any resulting custody decree be considered
void. l07  Instead, section 209(b) of the UCCJEA permits the court
on its own motion or that of a party to stay the proceeding until the
information is furnished. Abusers are most likely to manipulate
courts by falsifying information, and this change in the statute
removes the possibility of having a case dismissed from victims
faced with blatant fraud or deception.

1.   Option to Recognize Tribal Orders

Unlike the UCCJA and PKPA, which never addressed tribal
court custody proceedings, the UCCJEA gives states the option of

105. This statute states in pertinent part:
Upon a finding, which may be made ex parte, that the health, safety, or
liberty of a party or child would be unreasonably put at risk by the disclosure
of identifying information, or if an existing order so provides, a tribunal shall
order that the address of the child or party or other identifying information
not be disclosed in a pleading or other document filed in a proceeding under
this [Act].
UIFSA § 312 (1996).
TERSTATE CUSTODY: A MANUAL FOR DOMESTIC VIOLENCE ADVOCATES 35-36 (2d ed. 1995) (on file with NOW Legal Defense and Educational Fund). See also Evans v,
Evans, 623 N.Y.S.2d 685, 688 (App. Div. 1995) (holding that failure of a party to
comply deprives the court of the "opportunity to ascertain essential facts pertaining to
its assumption and continuance of jurisdiction").
107. See, e.g., Owens v. Huffman, 481 So. 2d 231, 242-43 (Miss. 1985) (supporting
the current position that the case should not be dismissed); Brewington v. Serrato, 336
S.E.2d 444, 447 (N.C. Ct. App. 1985) (same); Peery v. Peery, 453 So. 2d 635, 639-40
(La. Ct. App. 1984) (same); In re Nelsen, 681 P.2d 1302, 1304 (Wash. Ct. App. 1984)
(same); Pasqualone v. Pasqualone, 406 N.E.2d 1121, 1124 (Ohio 1980) (same); Pal-
trow v. Paltrow, 376 A.2d 1134, 1137 (Md. Ct. Spec. App. 1977) (same). Cf. Breaux v.
Mays, 746 P.2d 708, 709-10 (Okla. Ct. App. 1987); In re Marriage of Bolson, 394
N.W.2d 361, 364 (Iowa 1986); Berry v. Berry, 466 So.2d 138, 139-40 (Ala. Civ. App.
1985) (finding that the court may exercise modification jurisdiction, at least where no
action is pending in another state); Szmyd v. Szmyd, 641 P.2d. 14, 16-18 (Alaska
1982); Gambrell v. Gambrell, 272 S.E.2d 70, 72 (Ga. 1980).


doing 108  Furthermore, by taking this option, states help to bring
custody law in greater conformity with the VAWA full faith and
credit mandate 109 and better protect abused victims. It is likely that
reluctance of some states to recognize tribal custody decrees in the
past 110 prevented the Conference from including a provision re-
quiring that all states honor and enforce tribal court orders and
clarifying that "state" does include tribal lands.  The UCCJEA
does, however, clarify that it is not trying to diminish the protec-
tions of Indian children under the Indian Child Welfare Act
("ICWA"),111 noting that any proceeding subject to ICWA is not
governed by the UCCJEA to the extent it is governed by ICWA.112
In addition, the commentary observes that the UCCJEA "does not
purport to legislate custody jurisdiction for tribal courts," but tells
Tribes how they can adopt the UCCJEA.113


The UCCJEA has made many changes so that it can be better
enforced to ensure return of the abducted child, including situa-
tions governed by the International Child Abduction Remedies
Act l44 (ICARA), implementing the Hague Convention.  The en-
forcement section of the UCCJEA specifically covers situations
before any party has commenced a custody action in any court, so
that a court can order speedy return of the child to the peti-
tioner. l15  In addition, the UCCJEA requires states to enforce and
not modify the child-custody determinations of other states or
countries, or registered orders that were made in accordance with
both the UCCJEA and the PKPA.116  The determinations entitled
to enforcement specifically include temporary emergency jurisdic-
tion orders and the custody provisions after notice of domestic vio-

108. See UCCJEA § 104(b).
109. See supra note 26.
110. See, e.g., Desjarlait v. Desjarlait, 379 N.W.2d 139, 142-43 (Minn. Ct. App.
1985); Malaterre v. Malaterre, 293 N.W.2d 139, 145 (N.D. 1980). Cf. Eastern Band of
Cherokee Indians v. Larch, 872 F.2d 66, 68 (4th Cir. 1989) (holding in a custody dis-
pute involving a North Carolina court and a Cherokee tribal court that a reservation
is a "state" within the meaning of the PKPA).
III. 25 U.S.C. §§ 1901-1963 (1994) (governing custody proceedings when the state
is a party, but not proceedings where the parents are the sole parties).
112. See UCCJEA § 104(a).
113. See id. § 104 cmt.
114. 42 U.S.C. §§ 11601-11610 (1994).
115. See UCCJEA § 310 (indicating procedure for filing a warrant to take physical
custody of a child if the child is likely to suffer serious physical harm or be removed
from the state).
116. See id. § 303(a).

2000]                    THE UCCJEA                      929

lence orders. Enforcement remedies under the UCCJEA are in
addition to any other remedies available under state law.117

A.  Registration of Decrees

The UCCJEA creates a registration process for custody de-
crees. 118  However, unlike the registration process required by
VAWA's full faith and credit mandate, which does not require giv-
ing notice a second time to register a protection order in another
jurisdiction, the UCCJEA does require giving notice to any parent
or person acting as a parent who has been awarded custody or visi-
tation as part of the registration process before a custody decree
can be registered.119  Furthermore, very naively, the UCCJEA re-
quires that notice must be given in each state where the order must
be registered,120  further endangering those who are already at most
risk of retaliation121 and very likely causing them further delay, un-
certainty and expense.

The UCCJEA's registration process unfortunately ignored the
urgings of the battered women's advocates submitted through
Roberta Valente, former staff director of the American Bar Associ-
ation's Domestic Violence Commission,122  who suggested that all
custody decrees, particularly those entered in cases involving do-
mestic violence, could be registered statewide, and ultimately na-
tional registry for orders of protection. l23  This would immediately
afford full protection for battered woman and endangered children
throughout the United States no matter where they must flee, and
without imposing time delays and endangerment resulting from
further slow judicial processes 124  and notification to their abusers.

117. See id. § 303(b).
118. See id. § 304.
119. See id. § 304(b).
120. See id. § 304. Even if a state provides for registration without any filing or
service fee, and the state is not mandated to do so, one must file at least one certified
copy and an affidavit, which may incur further expense. See id. § 304(a)(2).
121. These are the people who are repeatedly stalked, pursued and abused, who
must repeatedly flee.
122. See Hoff, supra note 13, at 291 n.94.
123. See Susan B. Carbon et al., Enforcing Domestic Violence Protection Orders
throughout the Country: New Frontiers of Protection for Victims of Domestic Violence,
50(2) Juv. & FAM. CT. J. 39, 43 (Spring 1999) (citing the requirements of 18 U.S.C.
§ 2265). The authors note that as of April 12, 1999, only 23 states are participating to
some extent in the National Crime Information Center's Protection Order File
124. See UCCJEA § 304(c)(2), (d) (providing the respondent 20 days to contest the


If custody decrees were all nationally registered, l25 so would be any
subsequent orders to vacate, stay or modify the prior order, so any
enforcing court would have access to information about the validity
of the decree.

Although NCCUSL ignored most of the suggestions concerning
registration, it did provide for protecting the fleeing family in those
few cases where a court has denied all custody or visitation to an
abusive parent, by not requiring notice to be given to the abuser. 126
However, since virtually no courts prohibit all contact by the
abuser with the children, l27 the fleeing family will be placed in
great danger by having to reveal to which state they have fled as
part of the notice given to the abusive parent.

In cases where her batterer has already abducted the child, the
mother can file a petition to register the child-custody decree with
an accompanying request for a warrant to pick up the child,128 and
will not have to notify the abductor until the child has actually
been recovered. l29  This provision for protection shows that the
NCCUSL takes protection of children far more seriously than it
does of that involving battered women, and still does not recognize
that in about a quarter of cases where male batterers killing their
intimate female partners, they also kill their children.130

However, in the typical registration case requiring advance no-
tice (i.e., when no abduction is involved), a victim of domestic vio-
lence must notify her abuser when she files to register the order,
and he, like any other respondent, has twenty days to contest the
validity of the order.131  The UCCJEA permits a respondent to
challenge the order on only three grounds: (1) the issuing court did
not have jurisdiction; (2) respondent did not have any notice and
opportunity to be heard in the issuing court; or (3) the custody de-

125. The national registry for orders of protection already exists, although not all
states are inputting their data yet.
126. See UCCJEA § 209(e).
127. See Liss & Stahly, supra note 58, at 186. Some courts restrict visitation to
visitation by photograph or tape recording as a compromise when the court recog-
nizes that any actual contact with the child would be too dangerous.
128. See UCCJEA § 310. See also infra. Part III.C.
129. See UCCJEA § 310.
(finding that in 52.6% of domestic child homicides where two parents were involved
in caring for the children, the woman was known to have been beaten before the child
was killed which is probably an undercount, since agencies did not seek out this
data and that the man often killed the children to spite the child's mother, whom
he thought had betrayed him in some way). Websdale notes that overall children
made up 26% of all domestic homicides. See id. at 201.
131. See UCCJEA § 304(d).

2000]                         THE UCCJEA                           931

termination was vacated, stayed or modified. l32 It would also be
hoped that any finding of fraud, whether notice or the order itself
had been faked or fraudulently obtained, will be reduced to a writ-
ten finding that can later be used to impeach the respondent. Once
any custody order is registered, the only permissible grounds for
challenge is that it has subsequently been vacated, stayed or modi-
fied, l33 although due process considerations and statutory ones
should permit a challenge if the matter could not have been as-
serted previously. l34

B.  Challenges on Jurisdictional Grounds

For battered women faced with orders that their abusers have
obtained, the UCCJEA provisions can be an unfortunate change
from under the old UCCJA, which generally permitted jurisdic-
tional challenges to be raised at any time, provided one did not
delay in doing so.135  This ability to raise late challenges is needed
for several reasons. First, some abusers use dubious or illegal tac-
tics, such as failing to give notice, faking her signature, sending her
to the wrong court or on the wrong date or deflecting her attention,
tereby effectively preventing her attendance.  Second, abusers
may threaten their victims and witnesses so that they dare not show
up in court. Third, they may emotionally or financially drain their
victirns so that the victims are unable to contest custody. l36  If the
notice for registration does not warn that one's ability to challenge
the order at a later time will be solely limited if one does not show
up and contest it now, it is especially unfair to battered women.
Under the UCCJA, it was largely left to the registering or enforc-
ing court to verify the pleadings from the issuing court. While the
registering or enforcing court is not precluded from contacting the

132. See id. § 307(a)(l)(A)-(C).  Presumably the fact that an order had been
fabricated could also be raised at any time on due process grounds.
133. See id. §§ 304(f), 308(f)(2).
134. See id. § 305(c)(3). While it is not clear if "any matter that could have been
asserted" encompasses that the party challenging could not have appeared in court or
that the ground for challenging was not as yet known, the better interpretation is that
either issue can be raised,  id.
135. See B.J.P. v. R.W.P., 20 FAM. L. RFTR. 1178 (D.C., No. 91-FM-700m, Feb. 3,
1994) (holding that mother's failure to raise custody jurisdiction issue at outset pre-
vents her from doing so later); Soderlund v. Alton, 467 N.W.2d 144 (Wis. Ct. App.
1991) (finding that lawyer's seven-week delay in notifying a Florida court that he had
filed wife's divorce seeking custody in Wisconsin resulted in malpractice and the
wife's losing custody).
136. See Zorza, Batterer Manipulation and Retaliation, supra note 63; Raphael,
supra note 86, at 32-37.


issuing court about the validity of the offered decree, the UCCJEA
absolves the registering or enforcing court of responsibility for con-
tacting the issuing court not a very fair result given how few
battered women are likely to be represented in these situations.137

C.  Enforcement Mechanisms

For a battered woman with a custody decree in one state who
must allow visitation to her out-of-state abuser, it might be wise for
her to have the court condition the out-of-state (or country) visita-
tion on the prior registration of the child-custody decree so that it
will be immediately enforceable. However, prior registration is not
actually needed though may still be desirable for orders is-
sued from other Hague Child Abduction Convention l38 signatory
countries since that treaty provides for similar swift return of ab-
ducted or wrongfully retained children and enforcement of custody
orders from those countries.139

1.   Issuing Warrants

Another remedy under the UCCJEA permits courts to enforce
orders by issuing warrants to take immediate physical custody of
the child. Section 311 permits the court to issue such a "pick up"
warrant upon credible testimony "that the child is imminently
likely to suffer serious physical harm or be removed from this
State." 140  Courts are directed to hear such petitions on the next
judicial day after the warrant is executed, and may only delay if the
next court date is "impossible." 141  Not only may law enforcement
officers be directed to take physical custody of the child immedi-
ately, but if "a less intrusive remedy is not effective, it may author-
ize law enforcement officers to enter private property to take
physical custody of the child including, in exigent circumstances, by
forcibly entering at any hour." 142  The court must also provide for
the placement of the child pending final relief.143

137. Barbara J. Hart, Safety and Accountability? The Underpinnings of a Just Sys-
tem (visited Dec. 2, 1999) <http://www.mincava.unm.edu/hartindx.asp >.
138. See 42 U.S.C. § 11601 (1988).
139. See UCCJEA § 302 & cmt.
140. Id. § 311 cmt.
141. Id. § 311(b).
142. Id. § 311(e).
143. See id. § 311(c)(3).

2000]                    THE UCCJEA                      933

2.   Enforcing Visitation

Although the UCCJEA forbids courts to modify the custody or-
der of another state or permanently change custody, Section 305
does allow enforcing courts to enforce visitation rights in two lim-
ited situations. The first exception permits a court to provide for
make-up visitation time when visitation time has been ob-
structed. l44  Although the language only talks of visitation (which
undoubtedly shows that the language was inserted at the request of
fathers' rights groups), custodial parents should be likewise entitled
to make-up time if their time with the child has been obstructed.
The second exception allows courts to temporarily designate spe-
cific visitation times when orders do "not provide for a specific visi-
tation schedule" (e.g., "reasonable visitation.",) 145  In a "reasonable
visitation" case, the court must set an expiration date146 unless, as a
result of judicial communication, the issuing court has deferred ju-
risdiction on this issue to the enforcing court on the grounds it is a
more convenient forum,147 or, although not suggested under the
UCCJEA, the order is issued simultaneously by both courts.
Otherwise, the enforcing court's order expires on whichever date
occurs first, the expiration date set by the enforcing court or the
date of a new order by the issuing court.148

3.   Prosecutor's Role in Enforcement

Probably the most important addition to the enforcement sec-
tion, unless a state opts out, 149  is the creation in sections 315-317 of
an interstate network of prosecutors modeled after California's
prosecutors who, for twenty years, have had authority to enforce
child-custody orders from other states and countries.  These offi-
cials will be able to help locate and return missing children, as well
as seek enforcement in the state's criminal and civil courts. As a
practical matter, they can also help contact their counterparts in
other states when the child is in another state. For left-behind bat-
tered women, and especially those who have little access to fund-
ing, these remedies should greatly help them in retrieving children
who are wrongfully taken to other states.

144. See id. § 304 cmt.
145. Id. § 304(a)(2).
146. See id. § 304(b) & cmt.
147. See supra note 51 and accompanying text.
148. See UCCJEA § 304(b).
149. For example, in adopting the UCCJEA, Maine specifically chose to opt out of
this section. See 1999 Me. Laws 486.


The danger is that these public officials, acting on behalf of the
court, either fail to act because they do not take the abuse suffi-
ciently seriously or they act against fleeing battered women with-
out raising any domestic violence justifications. Furthermore, they
may be subject to manipulation by abusers,150 especially if they are
not very knowledgeable about domestic violence. They may also
further endanger battered women and their children by either re-
vealing confidential addresses or workplace locations.  Conse-
quently, courts will normally assess expenses pursuant to sections
312 and 317 against the losing party (including all direct expenses
and costs incurred by the public officials). It is also likely that this
section will be used to hurt fleeing battered women and protective
mothers. In contrast, section 208(b), prevents fees, costs or ex-
penses from being assessed against a state under the UCCJEA,
although it does not prohibit recovery authorized by other laws.


The UCCJEA has fixed several problems of its predecessor, the
UCCJA, with the result that the UCCJEA is more effective than
the old UCCJA and better reconciled with other federal laws. For
the first time courts that are making child-custody determinations
are encouraged to look at domestic and family violence to protect
the rest of the family from an abuser when a parent, the child or
any sibling of the child is being abused. In addition, the UCCJEA
makes clear that protective parents should not be punished for
fleeing incidents or patterns of domestic violence, and that any ju-
dicial finding or determination that parental or child abuse oc-
curred is res judicata as to each party who had notice of that

A number of improvements in the UCCJEA are left as options
to the states, and it is hoped that battered women's advocates will
urge states to adopt these options on behalf of their clients: ad-
dressing confidentiality provisions, granting full faith and credit to
tribal child-custody determinations and designating prosecutors or
other state officials to enforce child-custody determinations. In ad-
dition, advocates for battered women should urge their states to
adopt the changes made by California 151  for denying jurisdiction by
reason of conduct in its version of the UCCJEA.

150. See Zorza, Batterer Manipulation and Retaliation, supra note 6.
151. See CAL. FAM. CODE § 3135 (West 1999).

2000]                    THE UCCJEA                      935

The biggest problem with the UCCJEA for battered women is
that it requires notice to be given all over again to register a cus-
tody decree in any other jurisdiction. It is likely that this problem
can only be rectified by federal legislation amending the PKPA, the
VAWA full faith and credit mandate, and requiring the state and
federal registries for orders of protection to also register child-cus-
tody decrees.

Overall, the UCCJEA is an improvement over the UCCJA, and
should be supported by battered women and their advocates, espe-
cially with the proposed changes.