Creating or Defeating South Carolina Jurisdiction in Multi-State Custody or Support Cases (March 1998)
Published in South Carolina Lawyer, March 1998
Note: In 2007 South Carolina Replaced the UCCJA with the UCCJEA. Changes were made to the procedure when invoking the “significant connections” test to modify custody and limits were placed on the use of “emergency jurisdiction” to award custody. Also, in 2008, the Title 20, Chapter 7 of the South Carolina code was moved to Title 63. Thus the South Carolina code sections cited in this article are no longer accurate. A blog analyzing some differences between the UCCJA and UCCJEA can be found here: Correct Result, Questionable Rationale on Multi-State Child Custody Jurisdiction Appeal. An analysis of child custody jurisdiction under the UCCJEA can be found here: How is Jurisdiction Determined in a Multi-State Child Custody Case?
Historically high rates of divorce and out-of-wedlock births combined with an increasingly mobile society have created a situation in which a family law practitioner is frequently faced with multi-state jurisdiction issues in child custody and support actions. Though the rules governing jurisdiction are relatively simple, they can be difficult to understand because they are often counterintuitive. Frequently a state will have jurisdiction to determine child custody, but not child support. Often a state will have exclusive jurisdiction to determine custody when the child has not lived there for years. The initial support case involves issues of personal jurisdiction, while the initial custody case involves subject matter jurisdiction. Modification of support and custody orders involve a completely different set of (federal) rules. Furthermore, whether it is your client’s state of residence or the opposing party’s state of residence that issues a support or custody decree can have unexpected consequences that are often not realized until long after the case is finished, making it a ripe area for claims of malpractice.
This article will explain the basic law regarding creation and modification of multi-state custody and support orders, give examples of the typical issues that may confront a family law practitioner, and provide helpful hints on using the rules to your client’s advantage. This article is not meant to be a complete explanation of jurisdictional issues but is meant to cover the rules that will apply in most cases. In order to avoid pronoun confusion, the examples presume a setting with a custodial mother, a noncustodial father and one child, though the same rules would apply if the father has custody or if there is more than one child.
Reasons for Seeking Jurisdiction in Your Client’s Home State
There are three important reasons for attempting to have jurisdiction in your client’s state of residence and attempting to defeat jurisdiction outside your client’s state of residence: (1) ease of litigation; (2) enforcement, and (3) modification. It is simply easier to litigate support and custody (especially custody) in your client’s state of residence. Though South Carolina law has provisions for transmission of evidence from an out-of-state party in custody cases (S.C. Code Ann. § 20-7-820) and support cases (S.C. Code Ann. § 20-7-985), it is obviously easier to litigate these cases where you have easy access to your client and his or her witnesses. Trying to effectively present to a South Carolina court a clear picture of your client’s life in Seattle, Washington, for example, can be an expensive, frustrating task.
Since custody and support orders can often be multi-faceted and of extended duration, they present multiple opportunities for enforcement issues to arise, i.e., Rules to Show Cause. Enforcement is a major reason for trying to maintain jurisdiction in your client’s home state. Most times, minor violations of family court orders can be handled with a letter or some negotiation, but if your client has to travel out of state to enforce an order, enforcement becomes difficult. And if your client has to travel out of state to defend a Rule to Show Cause, the other party has less incentive to negotiate before resorting to litigation. Occasionally, an out-of-state father will submit to South Carolina jurisdiction after his lawyer has informed him that South Carolina support laws are not that different than his own state’s laws. He is often surprised to find he has to travel to South Carolina every time he is charged with violating the order, even if the violations are minor or corrected prior to the hearing.
Finally, for reasons explained below, the power to modify an existing support or custody order is based on one party’s (or the child’s) continuing residence in the issuing state. If the custody or support order is entered in your client’s home state, he or she retains some measure of control over the location of subsequent modification actions.
Modification of Existing Support and Custody Orders
The first thing to do when a potential client has questions regarding a multi-state support or custody case is to ask about prior orders. The reason is that the rules regarding initial custody and support jurisdiction only come into effect when there is no existing order or if the issuing state no longer has continuing exclusive jurisdiction. This somewhat backward analysis is necessary because the modification rules differ from the rules for initial decrees.
The rules regarding modification of support and custody decrees are substantially similar and are governed by federal law. The Parental Kidnaping Prevention Act (PKPA), 28 U.S.C. § 1738A, requires that full faith and credit be given to other states’ child custody determinations, while 28 U.S.C. § 1738B requires that full faith and credit be given to other states’ child support determinations. As long as one party or the child resides in the state issuing the custody order and a continuing exercise of jurisdiction is consistent with that state’s law, that state has continuing exclusive jurisdiction to modify custody. 28 U.S.C. § 1738A(d). As long as one party or the child resides in the state issuing the support order, that state has continuing exclusive jurisdiction to modify support unless each contestant to the support order has filed written consent with the issuing state to have another state issue a support order. 28 U.S.C. § 1738B(e). Generally, as long as one parent lives in the state that issued the existing custody or support decree, that state will need to decline continuing jurisdiction before another state can entertain a modification action. See Kirylik v. Kirylik, 292 S.C. 475, 476-77, 357 S.E.2d 449, 450 (1987) (South Carolina declined jurisdiction to enforce or modify South Carolina custody order when father still lived in South Carolina but Delaware was now child’s home state and mother had registered South Carolina order in Delaware).
Initial Custody Actions
Only if the issuing state no longer has jurisdiction to modify a custody order or if there has never been a custody order does one look to the jurisdictional rules regarding initial custody actions. One must look to both the PKPA and South Carolina’s version of the Uniform Child Custody Jurisdiction Act (UCCJA), S.C. Code Ann. § 20-7-782 et. seq. If the PKPA and UCCJA conflict, the PKPA controls. Schwartz v. Schwartz, 311 S.C. 303, 428 S.E.2d 748 (Ct. App. 1993).
South Carolina law provides four bases for exercising jurisdiction in child custody cases (S.C. Code Ann. § 20-7-788), which can be summarized as follows: (1) South Carolina is the “home state” (defined in S.C. Code Ann. § 20-7-786(5) as “the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period.”); (2) there are significant connections with the child and at least one party in South Carolina and substantial evidence regarding the child’s present or future care, protection, training and personal relationships in South Carolina; (3) the child is present in South Carolina and either abandoned or in an emergency abuse or neglect situation; and (4) the child is present in South Carolina and no other state would have jurisdiction.
The PKPA has four similar provisions (28 U.S.C. § 1738A(c)(2)) for the exercise of jurisdiction but with one important difference: under the PKPA the significant connection provision can be used to create jurisdiction only if there is no home state. 28 U.S.C. § 1738A(c)(2)(B). As a practical matter, because the PKPA gives priority to the home state (there is no such priority under the UCCJA) and is federal law, the home state has priority in custody cases.
Thus, in an initial action or in a modification action in which the issuing state no longer has jurisdiction, one is best off filing in the child’s home state, the state where the child has lived for the last consecutive six-month period. Although it is possible to seek jurisdiction in South Carolina by alleging that the child and your client have significant connections with this state making South Carolina’s exercise of jurisdiction in the child’s best interests (see S.C. Code Ann. § 20-7-788(a)(2)), jurisdiction in the child’s home state trumps jurisdiction based on significant connection. Consequently, the South Carolina order may not be entitled to another state’s full faith and credit under the PKPA.
In filing any custody action where the parties live in different states, one should be sure to comply with S.C. Code Ann. § 20-7-800, which requires certain information regarding the child’s residency and prior custody litigation to be submitted under oath with the initial pleading.
Initial Support Actions
Only if the issuing state no longer has jurisdiction to modify a support order or if there has never been a support order does one look to the jurisdictional rules regarding initial support actions. The law regarding interstate support actions is set forth in the Uniform Interstate Family Support Act (UIFSA), S.C. Code Ann. § 63-17-2900 et. seq. Unlike custody actions, support actions require personal jurisdiction over the defendant and there will occasionally be cases in which the court has jurisdiction to determine custody but not set support.
The seven bases for establishing personal jurisdiction over a non-resident for child support actions are set forth in S.C. Code Ann. § 63-17-3010, as follows: (1) the individual is personally served with a summons and complaint within this state; (2) the individual submits to South Carolina jurisdiction by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction; (3) the individual resided with the child in South Carolina; (4) the individual resided in South Carolina and provided prenatal expenses or support for the child; (5) the child resides in South Carolina as a result of the acts or directives of the individual; (6) the individual engaged in sexual intercourse in South Carolina and the child may have been conceived by that act of intercourse; or (7) there is any other basis consistent with the constitutions of South Carolina and the United States for the exercise of personal jurisdiction.
Personal jurisdiction over a non-resident defendant for child support actions implicates the due process clause of the United States Constitution. Kulko v. Superior Court of California, 436 U.S. 84, 91 (1978). Attorneys for mothers will often argue that the court has personal jurisdiction over the father because he agreed to allow the child to move to South Carolina or mailed his support checks to South Carolina. Neither of these factors provide a basis for jurisdiction under S.C. Code Ann. § 63-17-3010 or meet the standards of Kulko. “The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. It is essential in each case that there be some act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum State.” Kulko, 436 U.S. at 93-94. The Kulko court rejected out-of-hand arguments that California had jurisdiction over the father because he had allowed the children to move to California and had mailed his support checks there, because the father had done these actions not for his benefit but for the mother’s and children’s benefit. Id.
Given the family court’s desire to protect children, it will generally be unsympathetic to a non-resident father’s attempt to defeat South Carolina jurisdiction for child support when the children live in South Carolina. The practitioner representing the non-resident father should remind the court that it is fundamentally unfair to subject the father to the jurisdiction of a court in a state in which he has little or no contact, and that ere other, more appropriate, states for the mother to have brought the support action.
Applying These Rules to Create or Defeat Jurisdiction
In initial appointments with new clients regarding a multi-state custody or support action, always analyze whether South Carolina courts currently have jurisdiction, whether the court will soon acquire jurisdiction (perhaps South Carolina will become the home state of the child in a few months), and whether you and your client can take steps to create jurisdiction.
While a parent’s visitation with a child in South Carolina is not sufficient to create personal jurisdiction, often that parent can be served while in the state (preferably at the end of a visitation). Such in-state service would create jurisdiction.. See S.C. Code Ann. § 63-17-3010(1); Burnham v. Superior Court of California, 495 U.S. 604 (1990) (jurisdiction based on physical presence alone satisfies due process).
In your initial interview (typically by telephone) with a non-South Carolina resident who is seeking to defeat jurisdiction in a newly filed case, determine whether there is an existing custody or support order from that resident’s own state. If so, a motion to dismiss for lack of subject matter jurisdiction is a likely option. If the court attempts to order child support against a non-resident who does not fit within any of the S.C. Code Ann. § 63-17-3010 provisions, file an affidavit which tracks the language of that code section in the negative (e.g., “The Defendant was not personally served with a summons and complaint within South Carolina.”) along with a motion to dismiss for lack of personal jurisdiction. If a South Carolina custody action is filed and the non-resident had previously filed and served a custody action in that resident’s own state, seek to have the South Carolina court stay this state’s action until the other state accepts or declines jurisdiction. See 28 U.S.C. § 1738A(g); S.C. Code Ann. § 20-7-794.
A working knowledge of the rules regarding multi-state custody and support jurisdiction should guide your strategy. Sometimes, you will have a situation where a mother has recently moved with the child to another state without the father’s consent. Often the father will have no contacts with that state. Even if the father simply wants unspecified visitation with the child, you may suggest he immediately file an action in South Carolina for visitation and to establish child support, thereby locking enforcement in this state. Further, so long as he remains in South Carolina, there is a good chance any subsequent modification will take place here. He eliminates the risk of having to defend a support action in that other state (and greatly reduces the chance he will have to defend a visitation or custody action in that other state). Finally, the father can visit his child in the child’s state of residence without worrying that, if served with a support action while there, he would be subject to that state’s jurisdiction (as, pursuant to 28 U.S.C. § 1738B(e), that state would lack subject matter jurisdiction to modify South Carolina’s support decree).
Other times, that same father will come to you after the mother has recently moved to another state with the child and filed a custody action in that other state. If the mother is alleging “significant connection” as the basis for that other state’s custody (South Carolina still being the “home state”), you may suggest he file a custody or visitation action in South Carolina and then use the PKPA to defeat jurisdiction in the other state since the “significant connection” basis for jurisdiction can be used only when there is no home state. 28 U.S.C. § 1738A(c)(2)(B).
Conversely, even if the child has lived in the other state for more than six months, you may bring a custody or visitation action in South Carolina by arguing significant connection as a basis for jurisdiction under S.C. Code Ann. § 20-7-788(a)(2). Even though the child’s presence is not required in South Carolina to allege this basis for jurisdiction (see S.C. Code Ann. § 20-7-788(c)), it is best to bring the action at a time when the child has just spent substantial time in South Carolina. Be aware, however, that jurisdiction can be defeated if the other parent files a custody action in the child’s home state. The South Carolina custody order which uses significant connection as the basis for jurisdiction may not be entitled to full faith and credit under the PKPA if another state was the child’s home state at the time of filing.
Sometimes a noncustodial parent will seek to bring an action in South Carolina to modify a South Carolina custody order when the child has not lived in South Carolina for a number of years. If you represent the noncustodial, resident parent, you should be thinking about preserving jurisdiction by showing with your initial complaint the significant connection that remains between the child and South Carolina and the substantial evidence in South Carolina regarding that child’s present or future care. See S.C. Code Ann. § 20-7-788(a)(2); Knoth v. Knoth, 297 S.C. 460, 465, 377 S.E.2d 340, 343 (1989) (finding South Carolina still had exclusive jurisdiction to modify its own custody decree even though child’s home state was Illinois, due to significant contacts and substantial evidence existing in South Carolina). If you represent the custodial, non-resident parent, you should be attempting to show the opposite is true.
Other times, a South Carolina resident custodial parent may want to bring an action in South Carolina to modify a custody order issued from another state. Here, with the initial pleading, you should attempt to show that jurisdiction no longer exists under the issuing state’s law, which is a prerequisite to South Carolina exercising jurisdiction. 28 U.S.C. § 1738A(f)(2); Sinclair v. Albrecht, 287 S.C. 20, 22, 336 S.E.2d 485, 487 (Ct. App. 1985) (South Carolina had power to modify New Hampshire custody decree where New Hampshire no longer had jurisdiction because none of the parties to the original custody decree resided in or retained any significant contacts with that state).
There are times when South Carolina may have a basis for exercising child custody jurisdiction under S.C. Code Ann. § 20-7-788, yet that basis was created by the improper acts of the parent who brought the child to South Carolina. If the child was removed from the non-resident parent’s state wrongfully, or if the South Carolina parent improperly retained custody in moving with the child to South Carolina, the South Carolina court may decline jurisdiction by reason of the South Carolina resident parent’s conduct. See S.C. Code Ann. § 20-7-798.
Finally, when you have finished representing a parent in a custody action in which that parent has received court permission to move with the child out of state, you may advise him or her to file a modification action in the new state of residence if the other parent moves from South Carolina (assuming that your client has lived with the child in the new state long enough for that state to become the “home state”). Even if that modification action seeks only to create new transportation arrangements, it will lock subsequent enforcement or modification actions in the state of your client’s new residence.
Because there are substantial and long-term advantages to having custody and support cases litigated, enforced, and modified in your client’s home state, a family law practitioner should be familiar with the PKPA, UCCJA, UIFSA and 28 U.S.C. § 1738B and should use these code provisions to defeat jurisdiction when your client is a non-resident or to create jurisdiction over a non-resident opposing party.