• Minimum contacts and jurisdiction over a non-resident Defendant under the UCCJEA
  • August 25, 2011 | Author: John Lino Ponzini
  • Law Firm: Brandner & Ponzini - Stamford Office
  • In the famous International Shoe case, the Supreme Court articulated a two part test to apply in determining whether a Court could exercise in personam jurisdiction over a non-resident Defendant:

    1. Is the Defendant within the State's Long Arm Statute and if so,
    2..Does the Defendant have the requisite minimum contacts with the State to satisfy the Due Process Clause of the United State's Constitution?

    However, in at least one area of the Law, such a  two part test is supplanted by a Statute in force based on a Uniform Law: the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

    The adoption of this Act by a State makes the same a State Statute.

    The Act provides that jurisdiction over a Defendant may be exercised even if the Defendant would not 'qualify' as being subject to the powers of that State's Courts under International Shoe.

    Is such a provision Constitutional under International Shoe? "Yes" says Texas and a handful of other States. "No" says Alabama and a handful  of other States.

    The issue is unsettled as far as Federal Constitutional Law. Can a State Law somehow trump the United States Supreme Court? Doesn't the Supremcy Clause prohibit such a scenario? Apparently, the way to skirt the Supremecy Clause issue is to distinguish personal jurisdiction under the UCCJEA from personal jurisdiction in most all other areas of the Law.

    "Moreover, jurisdiction exists only if it is in the child's interest, not merely the interest or convenience of the feuding parties, to determine custody in a particular state.” See Commissioners' comment on § 3 of the UCCJA, 9 U.L.A. 309 (emphasis in original). The UCCJA has been the subject of numerous constitutional challenges, on the grounds that it does not require minimum contacts. Most courts that have considered the validity of jurisdiction under the UCCJA have determined that the status exception applies to child custody cases under the UCCJA, and that personal jurisdiction based on minimum contacts is not required. See e.g., In re Marriage of Leonard, 122 Cal.App.3d 443, 450-60, 175 Cal.Rptr. 903 (Cal.App.1981); People ex rel. State of Wyoming ex rel. Watson v. Stout, 969 P.2d 819, 821 (Colo.App.1998); Balestrieri v. Maliska, 622 So.2d 561, 563 & n. 1 (Fla.App.1993) (listing states which had made such determinations); Thompson v. Thompson, 241 Ga.App. 616, 526 S.E.2d 576 (1999); Bartsch v. Bartsch, 636 N.W.2d 3 (Iowa 2001).
     A few courts have differed, concluding that minimum contacts over an out-of-state parent are required in child custody proceedings. In some of these cases, however, the circumstances or the statutes differed from those at issue in this case. See e.g., In re Dean, 447 So.2d 733 (Ala.1984); In the Interest of John Doe, 83 Hawai‘i 367, 926 P.2d 1290, 1299 (1996) (concluding that jurisdiction under the UCCJA without minimum contacts was improper where “neither parent ever was or intended to be a resident of the state”); In re Vernon R.V., 128 N.M. 242, 991 P.2d 986, 987 (1999) (concluding that minimum contacts were required in a “straight termination” proceeding that did also not involve adoption); Pasqualone v. Pasqualone, 63 Ohio St.2d 96, 406 N.E.2d 1121, 1127-28 (1980) (concluding that Illinois, which had not adopted the portion of the UCCJA relating to jurisdiction over an out-of-state parent, did not validly exercise jurisdiction absent minimum contacts).
    Yet, recently, most courts that have dealt specifically with the termination of parental rights have determined that the status exception applies. See e.g., S.B. v. Sta

    In re Termination of Parental Rights to Thomas J.R., 2003 WI 61, 262 Wis. 2d 217, 232-34, 663 N.W.2d 734, 741-42

    So at least one Court has removed the International Shoe barrier by couching the Jurisdictional question in terms of the child's status and connection to the State as being the focus point and determinative factor in the jurisdictional question. Where the child is present, so are the parents.

    Any other interpretation, Courts argue, could leave the child without a forum especially if jurisdiction over both parents was required before a custody case could be heard.

    In one Connecticut case, a Texas Court determined it did not have personal jurisdiction over the father for divorce purposes but it did for the purpose of making a custody determination. The resolution was that the divorce was heard in Connecticut and custody in Texas.

    Until there is a more National determination relative to International Shoe's applicability to the UCCJEA, the policy underlying the UCCJEA (the prevention of lltigation chaos in custody cases) will contiinue to be frustrated.