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Full Faith and Credit for Custody Orders: Improvements Brought by the UCCJEA and VAWA II

NCJ Number
Domestic Violence Report Volume: 7 Issue: 1 Dated: October/November 2001 Pages: 1-2,10,11
Joan Zorza
Date Published
4 pages
This article describes laws related to custody provisions and improvements in full faith and credit for custody orders brought by the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), and the Violence Against Women Act II (VAWA II).
Orders granting battered women custody make it harder for her abuser to abduct the children. At the same time, orders granting the abuser visitation, especially when they are not extremely clear, may have the opposite effect. One problem is that in most States where custody can be granted, visitation can also be awarded, and this is true even in cases seeking protection from abuse. Many State and Federal laws now affect custody and visitation orders, including when other States must grant these orders full faith and credit. Giving a custody or visitation provision full faith and credit only means that the State will enforce it as if it had made the order. In fact, many States still either require a court order directing a law enforcement officer to enforce a custody or visitation order, or leave it to the court to enforce through contempt. Often, it is only the sheriff’s office and not the police who will enforce the court’s order. Thus, in many States the police generally will not act without further court order to enforce a custody order or provision. Moreover, many police act in gender biased ways, willing only to enforce the abuser’s visitation order, but not the abused woman’s custody order. This article discussed the quagmire of laws that have made custody provisions and custody orders enforceable, but will not address the gender bias in the system though such bias remains a large problem. Before the Uniform Child Custody Jurisdiction Act (UCCJA) was drafted by the National Conference of Commissioners of Uniform State Law (NCCUSL) in 1968, States did not honor or enforce the custody orders if any other State. This refusal to give full faith and credit to the custody orders of other States was upheld by the Supreme Court beginning in 1947. The result was to encourage parents who felt they were wronged in a custody action to abduct their children to other States where they might hope for a more favorable court decision. NCCUSL took on the task of correcting what society came to see as a serious injustice in the 1950's and 1960's, drafting a uniform act that every State could enact that would require them to honor and enforce the custody orders of other States. Once a State had enacted the UCCJA, it would then have to give full faith and credit to the custody orders of other States. In 1980, when States had still not adopted the UCCJA, Congress enacted the Parental Kidnapping and Prevention Act (PKPA). As a Federal law it preempts inconsistent State law under the Supremacy Clause of the U.S. Constitution. Thus, the PKPA’s version governs when there is any inconstancy between it and the UCCJA. VAWA II, enacted in 2000, made several changes that affect how courts should consider domestic violence in custody matters and when they must give custody orders full faith and credit. One change now permits courts that have not enacted the UCCJEA to take emergency jurisdiction when the child is in the State and “it is necessary in an emergency to protect the child, a sibling, or parent of the child has been subjected to or threatened with mistreatment or abuse." VAWA II also amended the full faith and credit provisions by adding language to clarify that the full faith and credit that it gives to protective orders can include “support or child custody orders issued pursuant to State divorce and child custody laws” provided it is “entitled to full faith and credit under other Federal laws." These changes mean that a custody or divorce decree containing a protective order will be honored consistent with PKPA and UCCJEA and, where it applies, the Indian Child Welfare Act (ICWA). ICWA applies in every State intervention child custody case. Another change to the full faith and credit provisions is that VAWA II adds: “Any protection order that is otherwise consistent with this section shall be accorded full faith and credit, notwithstanding failure to comply with any requirement that the order be registered or filed in the enforcing State or tribal jurisdiction.” This means that even in States that have adopted the UCCJEA, a decree need not be registered to be enforced in other States and tribal jurisdictions if the custody order contains an order of protection and certainly if an order of protection contain a custody provision.


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