UCCJEA

Attorney Daniel R Victor – the lawyer who won Foster v Wolkowitz in the Michigan Supreme Court

Daniel Victor is a partner at Victor and Victor and successfully argued the landmark child custody case Foster v. Wolkowitz in the Michigan Supreme Court.

Daniel is a nationally renowned expert and specialist in the areas of sensitive and complex divorce matter, contested child custody cases, and grandparent visitation.

Daniel is also a nationally published authority on the issue of ethical billing and retainer agreements in domestic relations cases.  Daniel’s 2009 article on ethical billing was cited by the Michigan Supreme Court in its order regarding ethical billing standards.

Daniel has successfully argued on multiple occasions before both the Michigan Court of Appeals and the Michigan Supreme Court.  Several of the seminal child custody cases in the State of Michigan were the cases Daniel took all the way to the Supreme Court.

Daniel has appeared on the MSNBC Catherine Crier show, as an expert on the disposition of Anna-Nicole Smith and Larry Birkhead’s daughter, Danniellyne.

Daniel argued before the Michigan Supreme Court, in the decisive matter of Foster v. Wolkowitz, arguing the issue of proper jurisdiction and constitutional implications of constitutional rights under the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA).

Prior to entering private practice, Daniel clerked for the Chief Justice of the Michigan Supreme Court, Conrad L. Mallett, Jr., as well as for the Chief Judge of the Oakland County Circuit Court, Joan E. Young.

Daniel was selected by Super Lawyers Magazine as a:

* Rising Star, 2009
* Super Lawyer, 2006

Daniel was selected by Michigan Lawyers Weekly as:

* Leader in the Law, 2008

Daniel has published articles throughout the country on the issues of:

* Child Custody
* Parenting Time
* Ethical Billing
* Third-Party Rights

Use the Contact page if you wish to contact attorney Daniel R. Victor.

The Uniform Child Custody Jurisdiction And Enforcement Act (“UCCJEA“) is a Uniform Act drafted by the National Conference of Commissioners on Uniform State Laws in 1997. The UCCJEA has since been adopted by 48 U.S. States, the District of Columbia, Guam, and the U.S. Virgin Islands. As of September 1, 2009 the only states that have not adopted the UCCJEA are: Massachusetts and Vermont. Puerto Rico has also not adopted the Act. There were 2009 introductions in Massachusetts, Vermont, Missouri (enacted) and New Hampshire (enacted but not effective until 12/1/2010 [per 2009 Laws, Ch. 191]).

The UCCJEA vests “exclusive [and] continuing jurisdiction” for child custody litigation in the courts of the child’s “home state,” which is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding (or since birth for children younger than six months). If the child has not lived in any state for at least six months, then a court in a state that has (1) “significant connections” with the child and at least one parent and (2) “substantial evidence concerning the child’s care, protection, training, and personal relationships” may assume child-custody jurisdiction. If more than one state has “significant connections” and “substantial evidence…”, the courts of those states must communicate and determine which state has the most significant connections to the child. A court which has made a child-custody determination consistent with UCCJEA has exclusive, continuing jurisdiction over the determination until either (1) that court determines that neither the child, the child’s parents, nor any person acting as a parent has a significant connection with the State that made the original order and that substantial evidence is no longer available in the State concerning the child’s care, protection, training, and personal relationships, or (2) that court or a court of another State determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the State that initially made the child custody order.

The UCCJEA replaced a previous Uniform Act, the “Uniform Child Custody Jurisdiction Act”, primarily because the old act was inconsistent with the federal Parental Kidnapping Prevention Act when determining proper jurisdiction for initial custody determinations and because of contradictory interpretations of the PKPA. The UCCJEA corrects these problems. The UCCJEA also added uniform procedures to register and enforce child-custody orders across state lines.

[] Initial custody determination

To determine which state has proper jurisdiction to make an “initial determination” of child custody, the UCCJEA proceeds in the following order of priority:

1. The state which is currently the “home state” of the child, or was the child’s home state within six months immediately before the commencement of child custody proceedings if the child is absent from the state, but a parent or person acting as a parent continues to live in the state;

2. If no state has jurisdiction under #1, then jurisdiction is proper where the child and at least one parent have a significant connection with the state (other than mere presence), and substantial evidence concerning the custody determination is available in the state;

3. If no state has jurisdiction under #1 or #2 above, jurisdiction is proper in any state having an appropriate connection with the child.

A state having jurisdiction under #1 or #2 above may decline to exercise its jurisdiction, and transfer it to another state if it is more convenient for the parties, or if one of the parties has engaged in misconduct necessitating a change.

“Home state” is defined as the “state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before 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 lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.”

For example, young Chris has lived in Iowa with his mother and father for the last three years. If the mother moves to Minnesota, but Chris remains in Iowa, then Minnesota will not have jurisdiction to determine custody over Chris. Iowa is the only state that can determine custody at this point.

[] Continuing jurisdiction

Once a state court has made a custody determination, that state keeps jurisdiction over all matters concerning that child, unless:

1. A court of the state with jurisdiction determines that the child or the child and a parent do not have a significant connection with the state, AND evidence concerning the child’s custody determination is not available in the state;

2. A court of the state with jurisdiction, or any other state, determines that the child and both parents or acting parents do not reside in the state any longer.

For an example of #1, the parents divorce in Texas, and mother and children move to Mississippi. The father continues to live in Texas and the children maintain a significant connection to Texas by visiting Texas often and spending their summers there. Three years later father files suit in Texas to modify custody. The mother attempts to transfer jurisidiction to MS. Texas should not relinquish jurisdiction to MS. This interpretation of the statute has been affirmed by the Texas Supreme Court in the case In Re Forlenza 140 S.W.3d 373, 379 (Tex. 2004).

For an example of #2, parents divorce in Texas, mother and children move to MS, Father moves to California. Once the children have resided in MS for six months, MS will have jurisdiction over the children in any custody disputes.

Modification of custody determination

Once a custody determination has been made, a court of another state does not have authority to modify the determination, unless the state with jurisdiction determines that it does not have jurisdiction as noted above, or any state court determines that the child, parents, and any acting parents do not reside in the state which currently has jurisdiction.

Continuing the example, Chris’ father gets custody of Chris in the Minnesota courts, and the mom moves to Arkansas. If Chris spends the summer with his mom in Arkansas, his mom cannot go to the Arkansas courts and attempt to modify custody – Minnesota has continuing jurisdiction.

Emergency orders

A state which does not otherwise have jurisdiction may enter a temporary emergency order, if the child is in danger and needs immediate protection. After issuing such order, the state court should determine if there is an existing custody order from another state 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 to the court with jurisdiction.

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. 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.

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