Is the lack of a set notice requirement in the UCCJEA a feature or a bug?

Posted Tuesday, December 13th, 2016 by Gregory Forman
Filed under Child Custody, Family Court Procedure, Not South Carolina Specific, Of Interest to Family Law Attorneys

In 2008 South Carolina went from the Uniform Child Custody Jurisdiction Act (UCCJA) to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The updated statute was largely an improvement. It includes limitation upon the exercise of “emergency jurisdiction” so that an emergency cannot be used to give a state permanent jurisdiction. It provided powerful enforcement remedies. It closed an obvious loophole in the modification provision by requiring the issuing state to relinquish jurisdiction if any party still lives in the issuing state [the UCCJA allowed the custodial parent’s home state to determine whether the issuing state still had significant connections to the minor child].

However the UCCJEA lacks any set notice provision for out-of-state litigants. The Federal statute addressing multi-state custody jurisdiction, the misnamed Parental Kidnaping Prevention Act (PKPA), states that “contestants” (defined as “a person, including a parent or grandparent, who claims a right to custody or visitation of a child”) are entitled to “reasonable notice and opportunity to be heard” before “a child custody or visitation determination is made.” 28 U.S. Code § 1738A(e). In implementing this “reasonable notice” requirement, the model UCCJA set a 30-day notice requirement (excluding emergency situations). The now-repealed section of South Carolina’s UCCJA dealing with notice, S.C. Code Ann. § 20-7-792 (1985), set a 20-day requirement. Duckett v. Goforth, 374 S.C. 446, 649 S.E.2d 72, 80 (Ct.App. 2007). In contrast, South Carolina UCCJEA’s notice provisions, S.C. Code §§ 63-15-314 & 338, and the model statute, are silent on any set notice period.

Whether this omission was a feature or a bug is unclear. The PKPA anticipates, and the UCCJA created, a longer notice provision for out-of-state residents than would be required for in-state litigants. The UCCJEA’s omission of a set “reasonable notice” provision does not mean that the general notice provision for temporary hearings in South Carolina’s family court rules–five business days pursuant to Family Court Rule 21(a)–necessarily complies with the requirements of the PKPA. Earlier this week I litigated this issue, convincing a family court judge that nine-days notice of a temporary hearing to a Maryland defendant was not reasonable.

It is obviously more difficult for out-of-state litigants to obtain in-state counsel and prepare for in-state hearings than it is for a local litigant. What may be “reasonable notice” for a local litigant may not be reasonable for a foreign litigant. However, how much extra notice is “reasonable” for a foreign litigant may depend upon how “foreign” that litigant is. The notice that might be reasonable in a South Carolina custody dispute for a litigant in Savannah, Georgia might be a great deal less than the notice for a litigant in rural Africa or Australia.

Unfortunately, this is not an issue amenable to an appellate decision. It is most likely to arise in regards to temporary hearings. Any family court order interpreting this requirement as it regards temporary hearings would be moot by the time the case results in a final order. Thus interpretation and implementation of the PKPA’s “reasonable notice” provision is now determined by individual family court judges.

My conclusion: the lack of a set notice requirement in the UCCJEA is a bug–a bug it took me eight years to discover. Given the PKPA’s “reasonable notice” requirement the lack of any set notice provision in the UCCJEA is inexplicable.

One thought on Is the lack of a set notice requirement in the UCCJEA a feature or a bug?

  1. Mindy Schneider says:

    You are the best. I always enjoy reading, what you put together.

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