As courts and practitioners continue to navigate the impacts of COVID-19, there has likely been a permanent impact on the interpretation of “temporary absences” under the UCCJEA.
By Adam J. Turbowitz, Family Lawyer
Family law has been impacted by COVID-19 in unprecedented ways. The pandemic has particularly challenged the concept of “temporary absences” as used in jurisdictional disputes within child custody litigation.
Many families have become displaced as a result of quarantines, loss of employment, and school closures, causing them to seek refuge in other states. Others seized the opportunity to work remotely away from home. Some stayed away as quarantines became longer, schools remained closed, and remote work continued. Over 15.9 million people filed change-of-address requests with the USPS between February and July 20201, reflecting a 2% increase in permanent movers and a 27% increase in temporary movers since 2019.
Whether temporary or permanent, these pandemic-related moves have had uncontemplated consequences on child custody disputes in cases where one parent wants to remain with a child in a new state.
The Uniform Child Custody Jurisdiction and Enforcement Act
Whether the court in a given state has jurisdiction over a child custody proceeding is addressed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
Under the UCCJEA, for initial custody determinations, jurisdictional priority is given to a child’s “home state,” which, broadly speaking, is the state in which a child lived with a parent2 for the six months immediately preceding the commencement of a child custody proceeding.3 Generally, a state has home state jurisdiction if it is the child’s home state on the date of commencement, or if it was the child’s home state within six months of the date of commencement, and one parent4 continues to live in the state after the child was removed.5
Temporary Absences Under the UCCJEA
Since it is impractical to require a child to physically remain, without interruption, in a state for six consecutive months, the UCCJEA allows for “temporary absences.” Specifically, the UCCJEA provides that a period of temporary absence of either a child or a parent6 from the child’s home state counts toward the six-month home state period. Stated otherwise, the period of temporary absence is essentially ignored when determining the six-month home state period.7
But the question of what constitutes a temporary absence is not always clear, particularly when that absence is prolonged by a pandemic.
What Constitutes a Temporary Absence?
Most jurisdictions determine whether a child’s stay in a particular jurisdiction is considered a “temporary absence” by examining the totality of the circumstances,8 including not only the child’s physical presence in the state, but factors that speak to intent.9 Such an analysis can be forgiving to families who were temporarily misplaced due to the pandemic. For instance, in Matter of Saida A., the court found that a child’s stay in Pakistan for almost one year was a “temporary absence” from New York since the child’s return was delayed in part due to COVID-19 travel restrictions.10 In Camberos v. Palacios, the court found that Utah was the child’s home state, even though the child resided with the father in Illinois for over six months while under “lockdown.”11
Although less common, some jurisdictions consider only the child’s physical location during the six-month period preceding commencement.12 Others have declined to consider the parties’ future intent in making a home state determination. For example, in Miller v. Mitchell,13 the court found that Florida was the child’s home state despite the mother’s claim that she only extended her vacation from New Jersey longer than six months due to the pandemic.
In a custody proceeding in which the parents are in two different states, it is best to be the first to commence. For initial custody determinations, the UCCJEA affords jurisdictional priority to the state in which the first action was commenced.
Jurisdictional Disputes: Practical Considerations
In a custody proceeding in which the parents are in two different states, it is best to be the first to commence.14 For initial custody determinations, the UCCJEA affords jurisdictional priority to the state in which the first action was commenced.15
If you are not the first to file, contest the other state’s improper jurisdiction by filing a motion to dismiss the action. Failing to do so could forfeit your jurisdictional claims.16 It is critical to also commence an action in the state in which you believe the custody determination should be made. Doing so will trigger the court’s obligation to conduct a conference with the court in the other state, to determine which state is the appropriate forum to adjudicate the matter.17
It is difficult to advise clients in this situation, since they may be hesitant to rush to court. Attorneys should be clear that acting quickly may avoid drawn-out jurisdictional litigation – especially important where one parent is separated from the child. Doing so may also avoid the creation of a new status quo; since the longer a child resides with a parent in one state, the more likely a court is to consider a disruption to that continuity as averse to the child’s best interests. On the other hand, following the child to the new state could be considered voluntary acquiescence to the new status quo, and may cast doubt on your client’s intent to return to the home state.
Ultimately, as courts and practitioners continue to navigate the impacts of COVID-19, there has likely been a permanent impact on the interpretation of “temporary absences” under the UCCJEA.
1 Cynthia Bowman, Coronavirus Moving Study: People Left Big Cities, Temporary Moves Spiked in First 6 Months of COVID-19 Pandemic, MyMove (Oct. 12, 2020).
2 This also includes a person acting as a parent. UCCJEA §201(a)(1).
3 UCCJEA §102(11).
4 See note 3.
5 UCCJEA §201(a)(1). Other bases for a court to exercise jurisdiction over a child custody determination not discussed in this article are set forth in UCCJEA §201.
6 See note 3.
7 See note 3.
8 Matter of Marriage of Schwartz and Battini, 289 Or.App 332 (Or. Ct. App. 2017) (child’s absence from Indonesia was not a temporary absence); Norris v. Norris, 345 P.3d 924 (Alaska 2015) (the parties’ move from Alaska to Mississippi was not a “temporary absence”); In re M.S., 176 A.3d 1124 (Vt. 2017) (Vermont court applied a physical presence test to determine whether a child “lived” in a state and the totality of the circumstances analysis to determine whether a period outside of the state was a temporary absence).
9 See Ex parte Siderius, 144 So.3d 319 (Ala. 2013) (where parents intend for a child’s absence from a state to be temporary, it will count toward establishment of home state); In re Marriage of Milne, 109 N.E.3d 911 (Ill.App. 2 Dist. 2018) (children’s stay in Canada for over one year was a “temporary absence” since parties intended to return to Illinois).
10 71 Misc. 3d 611 (Fam. Ct. N.Y. Cty. 2021).
11 2021 IL App (2d) 210078 (Ill.App. 2 Dist. 2021).
12 See In re Walker, 428 S.W.3d 212 (Tex. App. 2014) (Texas did not have home state jurisdiction because child was not physically present for six consecutive months); In re A.G.B., 2020 WL 3397922 (Ohio Ct. App. 2020) (Ohio was not child’s home state because child was not physically present with a parent for the preceding six months).
13 328 So.3d 1067 (Fla. 3d DCA 2021).
14 Note that the UCCJEA defines contains a definition of the word “commencement” which may be different from what constitutes the commencement of a proceeding in a given jurisdiction.
15 UCCJEA §206(a).
16 See In re Marriage of Iwed, 116 P.3d 36 (Kan.App. 2005) (California court refused to relinquish jurisdiction after mother did not challenge jurisdiction or file in the child’s home state).
17 UCCJEA §206(b).
Adam Turbowitz (JD, Tax LL.M) is a Fellow of the American Bar Foundation (ABA) and a partner at Boies Schiller Flexner. He has been a member of the Council of the ABA’s Family Law Section since 2018, and currently serves that Section in a variety of leadership positions. With files from Jessica Bouis and Carly Wheaton, Associates at Boies Schiller Flexner. www.bsfllp.com
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