Supreme Court Addresses Child Custody Jurisdiction
July 9, 2003
The issue of jurisdiction over family court issues became clearer recently when the Supreme Court of Wisconsin issued its opinion in Tammie J.C. v. Robert T.C., 2003 WI 61.
The supreme court held that personal jurisdiction is not necessary in a child custody case under the Uniform Child Custody Jurisdiction Act (UCCJA)(Wis. Stat. Ch. 822).
Typically, subject matter jurisdiction, which is usually conferred by residence in Wisconsin for the requisite amount of time, is sufficient only to change the status of the marriage. Personal jurisdiction, which typically requires minimum contacts with the state, is necessary for the court to make orders affecting other issues such as property division or support. Personal jurisdiction can be waived, but subject matter jurisdiction cannot.
For those who are flashing back to their law school civil procedure class, and remembering how stumped they were in discussions of jurisdiction, take heart – the iter play between subject matter and personal jurisdiction can be highly confusing, not just to lawyer and the divorcing parties. but to the courts as well.
For example, in Mendez v. Hernandez-Mendez, 213 Wis. 2d 217, 570 N.W.2d 563 ( Ct. App. 1997), the court of appeals held that once a defendant registers an objection to jurisdiction, the plaintiff has the burden to establish jurisdiction. Since the wife had raised the jurisdiction issue by a letter to the court and husband failed to demonstrate grounds for personal jurisdiction under Wis Stats. §801.05, the trial court properly dismissed the divorce petition.
The result of the case was that subject matter jurisdiction would not be sufficient to change status. Fortunately, due to efforts by Milwaukee County Assistant Family Court Commissioner Lucy Cooper and the Family Law Section of the State Bar of Wisconsin, legislation was enacted to reverse the effects of the Mendez case.
In the June 20 decision of Tammie J.C., Tammie sought to terminate the parental rights of Robert to their son. At the time of the TPR action, Robert was serving a prison sentence in Arizona for sexually abusing Tammie’s daughter from a previous relationship. Wisconsin had subject matter jurisdiction over the status under the UCCJA and Arizona declined to exercise jurisdiction under the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. §1738(A). Robert sought to dismiss the action, asserting, among other things, that Wisconsin did not have personal jurisdiction over him as he lacked minimum contacts with the state.
After first ascertaining that Arizona had declined jurisdiction under the PKPA, Lafayette County Circuit Court Judge James Welker found that Wisconsin had jurisdiction, there were grounds for termination and that termination of Robert’s parental rights would be in the boy’s best interests. The court of appeals reversed, holding that Wisconsin lacked personal jurisdiction over Robert.
In a decision penned by Justice Ann Walsh Bradley, the supreme court reversed the intermediate court and returned the case to the circuit court for determination of other issues. The high court held that there was a “status” exception to the general requirement that personal jurisdiction requires minimum contacts with the state. Since custody proceedings determine the “status” of children, the minimum contacts requirement do not apply to proceedings under the UCCJA.
Of particular interest to family law attorneys is the applicability of the case to family court actions. While the supreme court could have limited its holding to termination proceedings, the court expressly holds that termination of parental rights actions are child custody proceedings under the UCCJA (in a dissent, Justice Diane S. Sykes discussed the differences between the two — a differentiation basically ignored by the majority).
It should be noted that, although the supreme court decision does not reference the PKPA, to modify an existing custody order, if there is a conflict between the PKPA and the UCCJA, the PKPA controls. See Michalik v. Michalik, 172 Wis. 2d 640, 494 N.W.2d 391 (1993).
Under the PKPA, the state that initially enters a child custody determination has the sole prerogative to modify that determination, as long as the modification is valid under its own law and either the child or a contestant continues to live in that state or that state declines jurisdiction. In Tammie J.C., the PKPA did not apply, as Arizona declined jurisdiction. Then the father moved to Utah.
The effect of the supreme court decision is to make jurisdiction for child custody matters easier to establish when the subject matter requirements under the UCCJA are met and PKPA does not apply.
However, for certain cases, this means jurisdiction may lie in different states for different issues. For example, under the Uniform Interstate Family Support Act (UIFSA) Wis. Stat. Ch. 769, in most cases, the state making the initial child support order retains continuing and exclusive jurisdiction. Therefore, if a mother moves to another state with a minor child and remains there sufficiently long to establish jurisdiction under the UCCJA, it is entirely possible that the new state will have jurisdiction over custody matters while the old state retains jurisdiction over child support. Practically speaking, most people lack sufficient resources to fight a two-front battle.
The lack of a requirement for personal jurisdiction also may increase the stakes for removal cases. Where a parent moves to a new state, subject matter under the UCCJA can be established once the new state is the child’s home state for six months. Since personal jurisdiction is not required, the non-moving parent’s relationship to the new state is not important.
In her dissent, Justice Sykes comments that the severe facts of the instant case might have played a hand in determining the result. Certainly, it is difficult to sympathize with a convicted child molesters. Whether the holding is right or wrong, however, the effect of the case clarifies an important issue which arises with great frequency.
This article originally appeared in Wisconsin Law Journal.