need not comply with the PKPA, as a practical matter a state must comply with the
PKPA .... An exception is made as a temporary matter for the state in which the.
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CHAPTER TWENTY
UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT Iowa Code Chapter 598B
A. GENERAL PURPOSE..............................................................................................2 B. APPLICABLE TO JUVENILE COURT CUSTODY PROCEEDINGS .......................3 C. 598B REQUIREMENTS FOR INCLUSION IN PETITION OR AFFIDAVIT ..............3 D. DETERMINATION OF JURISDICTION....................................................................4 1. HOME STATE ........................................................................................................5 2. PHYSICAL PRESENCE PLUS EMERGENCY.......................................................6 E. WITHHOLDING JURISDICTION ..............................................................................7 * Note that effective July 1, 1999, Iowa Code Chapter 598A, the Uniform Child Custody and Jurisdiction Act was replaced by the Uniform Child Custody Jurisdiction and Enforcement Act, Iowa Code Chapter 598B.
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A. GENERAL PURPOSE The purpose of a uniform act such as chapter 598B is to avoid conflicts in child custody determinations as between the several states. Additionally, adoption of this revised act in 1999 was designed to eliminate conflicts between the former act, Chapter 598A, the Uniform Child Custody and Jurisdiction Act, and the federal parent kidnapping prevention act. 28 U.S.C.A. 1738A. The general provisions require that except in emergency cases only the court of the child’s home state as that is defined be the one with jurisdiction to decide the child’s custody. Iowa Code Section 598B.201(1)(a). The new act provides for a simplified procedure for registering a custody determination in another state. Iowa Code Section 598B.112. If the determination was made in accordance with due process and the uniform act, it is to be recognized and enforced in other sister states who have also adopted the uniform act. Iowa Code Section 598B.106. The Jorgensen case demonstrates the interplay between the Uniform Child Custody Jurisdiction Act [former Iowa Code Chapter 598A] and the federal Parent Kidnapping Prevention Act [28 U.S.C. Section 1738A]. [Note that Chapter 598A was repealed in 2000 and replaced by Chapter 598B – the Uniform Child Custody Jurisdiction and Enforcement Act, designed to eliminate any inconsistencies between the former UCCJA and the PKPA.] The court stated that the PKPA was designed to ensure one state would give full faith and credit to the child custody decree of another state if the other state’s decree was entered pursuant to the PKPA. The UCCJA was an imperfect remedy to interstate disputes because the states enacted differing versions of the uniform act and interpreted the act differently. The results were interstate conflicts and forum shopping. The PKPA was designed to be a uniform federal statute which would give clear guidance on jurisdiction and enforcement of child custody determinations. The Iowa Supreme Court held that a court needs to consider the PKPA if it must determine which of two states has jurisdiction to decide a custody dispute. To enforce a sister state’s order, the other state must have had jurisdiction under its own local law and one of the five conditions set forth in 28 U.S.C. Section 1738A(c)(2) must be met. The PKPA has a clear preference for “home state” versus “significant connection” jurisdiction. While in exercising initial jurisdiction, a state need not comply with the PKPA, as a practical matter a state must comply with the PKPA if it wishes other states to give full faith and credit to its decrees – the PKPA’s “coercive effect.” In this Jorgensen case, the Iowa Supreme Court found that Iowa and not New York was the child’s “home state” at the commencement of the proceeding and thus Iowa was not required to afford a New York custody decree with full faith and credit. In re Jorgensen, 623 N.W.2d 826 (Iowa 2001).
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B. APPLICABLE TO JUVENILE COURT CUSTODY PROCEEDINGS The Uniform Child Custody Jurisdiction and Enforcement Act as enacted in Iowa Code Chapter 598B applies to juvenile court custody proceedings with regard to cases of child in need of assistance and termination of parental rights. The broad language of inclusion in the former Section 598A.2(2) – “providing for custody of a child, including visitation rights” includes juvenile court orders in child in need of assistance cases. In Interest of E.A., 552 N.W.2d 135, 138 (Iowa 1996). The former Uniform Child Custody Jurisdiction Act [Iowa Code Chapter 598A] also applies to termination of parental rights cases as they are custody determinations and custody proceedings within the scope of Iowa Code Chapter 598A. 78 A.L.R.4th 1028, 1054 (Section 5). The revised act, Chapter 598B, makes clear that both child in need of assistance actions as well as termination actions under both Chapters 232 and 600A are subject to the provisions of the Uniform Act.
"Child-custody proceeding” means a proceeding in which legal custody, physical custody, or visitation with respect to a child is in issue. The term includes a proceeding for dissolution of marriage, separation, neglect, abuse, dependence, guardianship, paternity, termination of parental rights, and protection from domestic abuse in which the issue may appear. Iowa Code Section 598B.102(4). [emphasis added.]
The Act does not apply, however, to delinquency cases. Iowa Code Section 598B.102(4). Nor does it apply to adoption proceedings or authorization for emergency medical care for a child. Iowa Code Section 598B.103. Nor does it apply to cases subject to the Indian Child Welfare Act [25 U.S.C. 1901 et. seq.] Iowa Code Section 598B.104(1).
C. 598B REQUIREMENTS FOR INCLUSION IN PETITION OR AFFIDAVIT Every party to a child-custody proceeding, in that party’s first pleading or in an affidavit attached to that pleading, shall give information under oath as to the child’s present address or whereabouts, the places where the child has lived within the last five years, and the names and present addresses of the persons with whom the child has lived during that period. In this pleading or affidavit every party shall further declare under oath whether the party: [a] Has participated as a party, witness or in any other capacity, in any other 3
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proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child-custody determination, if any. [b] Knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding. [c] Knows the names and addresses of any persons not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons. Iowa Code Section 598B.209(1). If the first pleading in a case is a petition in a child in need of assistance and termination case, the foregoing information should be included either in the petition itself or in an affidavit attached thereto. If another pleading such as an application for temporary removal is the first pleading in a child in need of assistance case, an affidavit with the foregoing information should be filed with the application. Iowa Code Section 598B.209(1). The court may stay the proceeding until the required information is provided. Iowa Code Section 598B.209(2). Examination under oath. If the declaration as to any of the above items is in the affirmative the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and as to other matters pertinent to the court’s jurisdiction and the disposition of the case. Iowa Code Section 598B.209(3). Continuing duty to update the court. Each party has a continuing duty to inform the court of any proceeding in this or any other state that could affect the current proceeding. Iowa Code Section 598B.209(4). Information sealed to protect child. If the health or safety of a child would be jeopardized by disclosure of the foregoing information, the cout may order the information sealed and not disclosed. Iowa Code Section 598B.209(5). SEE APPENDIX
FORM CH163
AFFIDAVIT RE: CHILD CUSTODY
D. DETERMINATION OF JURISDICTION The general rule is that the court with jurisdiction over a custody determination is the child’s home state. An exception is made as a temporary matter for the state in which the child is physically present and for which an emergency situation exists to take jurisdiction for the period necessary to protect the child. 4
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1. HOME STATE "Home state" means the state in which the child lived with a parent or person acting as parent for at least six consecutive months immediately before commencement of a child-custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the named persons is part of the period. Iowa Code Section 598B.102(7).
(1) Except as provided in section 598B.204, a court of this state has jurisdiction to make an initial child-custody determination only if any of the following applies: (a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before commencement of the proceeding and the child is absent from this state but a parent continues to live in this state; or (b) A court of another state does not have jurisdiction under paragraph (a), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section 598B.207 or 598B.208 and both of the following apply: (1) the child and the child's parents, or other child and at least one parent or person acting as a parent have a significant connection with this state other than mere physical presence; and (2) substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships; or (c) All courts having jurisdiction under paragraphs (a) and (b) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section 598B.207 or 598B.208; or (d) no court of any other state would have jurisdiction under the criteria specified in paragraph "a", "b", or "c". Iowa Code Section 598B.201.
In the Jorgensen case, the Iowa Supreme Court found that Iowa and not New York was the child’s “home state” at the commencement of the proceeding and thus Iowa was not required to afford a New York custody decree with full faith and credit. In this case, the child in interest had resided in Iowa with the child’s mother for 10 months preceding filing of the custody action. In re Jorgensen, 623 N.W.2d 826 (Iowa 2001).
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2. PHYSICAL PRESENCE PLUS EMERGENCY As set forth in Section 598B.204, the Iowa Juvenile Court may take temporary emergency jurisdiction over a non-resident child present in Iowa and abused or neglected. The court should take those steps necessary to protect the child and thereafter communicate with the home state court regarding long-term placement issues. Iowa Code Section 598B.204(4). A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse. Iowa Code Section 598B.204(1).
Temporary emergency orders remain effective for a reasonable period necessary for the parties to obtain necessary orders in the state with initial child-custody jurisdiction. Iowa Code Section 598B.204(3). The Iowa juvenile court had subject matter jurisdiction under former the Uniform Child Custody Jurisdiction Act to protect children from risks of harm arising during their presence in this state despite a foreign state being the children’s home state and the foreign state’s courts having assumed jurisdiction of custody issues in a pending dissolution action. In Interest of E.A., 552 N.W.2d 135, 138 (Iowa 1996). In such a case, the Iowa court may properly take jurisdiction to protect the children pending a final determination on the custody issue in the home state. This emergency jurisdiction may allow even for the entry of a dispositional order in a child in need of assistance case in this state. Id. The Iowa Supreme Court considered the contention that the former section 598A.3(1)(c) applied so as to confer jurisdiction on a Texas court which entered an order granting a father temporary custody of his children and enjoining the mother, an Iowa resident, from removing the children from Texas. The Iowa Supreme Court found that although the children were physically present in Texas, they had not been abandoned and there was no emergency that required protection of the children. The exigencies that existed vis-à-vis the children's best interests were being controlled by the Iowa juvenile court in which the children had been adjudicated children in need of assistance and placed in the temporary custody of the mother subject to visitation with the father. A.B. v. M.B., 569 N.W.2d 103, 106 (Iowa 1997). Of note in A.B., supra is that the Iowa Juvenile Court also granted concurrent 6
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jurisdiction to allow the parents to have custody and visitation decided by the District Court. The mother contended that only an Iowa court may be granted concurrent jurisdiction of custody issues under section 232.3 by an Iowa juvenile court. Although the Iowa Supreme Court found that interpretation of the statute is too restrictive, they stated that the present case vividly illustrated the practical concerns that can arise from permitting such adjudications by the courts of other states while a CINA proceeding is pending in Iowa. The Court stated that a grant of concurrent jurisdiction to another state should only be done when the facts demand it and with assurance that it will not ultimately frustrate the jurisdiction of the Iowa juvenile court. In addition, unless the express findings required by 598A.3(1)(d) have been made [i.e., no other state has jurisdiction of the case and best interests demand it], a juvenile court should not grant concurrent jurisdiction to an out-of-state court that does not have jurisdiction under the UCCJA in the absence of such findings. A.B. v. M.B., 569 N.W.2d 103, 107 (Iowa 1997). The Iowa Court further held that the children’s mother was not required to appear and challenge the jurisdictional issue in the Texas court on penalty of losing by default. The provisions of Iowa Code section 598A.12, which are identical with the Texas version of the UCCJA, speak directly to the preclusive effect of an order rendered against a nonappearing party "with an opportunity to be heard." This statute provides that such orders are not binding on a party unless the court issuing the order had jurisdiction under section 598A.3 [section 3 of the UCCJA]. Where the Texas court did not have jurisdiction under that section, the mother was free to challenge the jurisdiction of the Texas court in the Iowa juvenile court. A.B., supra at 107.
E. WITHHOLDING JURISDICTION The Iowa Court should withhold exercising jurisdiction over a child where another state’s court has jurisdiction. This does not prohibit the temporary protections afforded to an abused or neglected child, however.
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Except as otherwise provided in section 598B.204, a court of this state shall not exercise its jurisdiction under this article if, at the time of commencement of the proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because this state is a more convenient under section 598B.207. . . . . If the court determines that a child-custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter, the court of this state shall stay the proceeding and communicate with the court in the other state. If the court of the state having jurisdiction substantially in accordance with this chapter does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding. Iowa Code Section 598B.206(1) and (2).
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