The Lawletter Vol 41 No 1
Resolving a question that is not expressly answered by the language of the Uniform Child Custody Jurisdiction And Enforcement Act ("UCCJEA"), the District of Columbia Court of Appeals in Upson v. Wallace, 3 A.3d 1148 (D.C. 2010), held that if a trial court had home-state jurisdiction to issue an initial custody determination under the UCCJEA at the time the action was filed, then the court could still exercise that jurisdiction even after all parties had left the state.
In Upson, the child, Georgiana, was born in Virginia in May 2004. On March 2, 2005, the child's father, Wallace, filed for custody of Georgiana in Alexandria, Virginia. In April 2005, the child's mother, Upson, relocated with the child from Virginia to the District of Columbia.
Upson subsequently attempted to litigate custody in the District of Columbia, but Wallace's motion to dismiss for lack of subject-matter jurisdiction was granted. Upson challenged the dismissal and ultimately was able to bring before the District of Columbia Court of Appeals the question of the validity of the custody order that had been entered by the Virginia court after all parties had left Virginia.
Upson argued that although Virginia was the home state of the child when the custody action was filed by Wallace in March 2005, the Virginia court lost jurisdiction to act when Upson and Georgiana left Virginia and relocated to the District of Columbia in April 2005. Upson argued that Virginia lacked jurisdiction to adjudicate custody and that the District of Columbia, as the residence of all interested parties since April 2005, was the proper place to adjudicate custody.
The court of appeals disagreed, stating:
Although Upson and Georgiana moved to the District of Columbia in April of 2005, under the UCCJEA, Virginia was the home state of the child when Wallace initiated a custody proceeding in the Commonwealth on March 2, 2005, because Georgiana had lived in Virginia since her birth on May 30, 2004. Since Virginia had jurisdiction at the outset of the custody proceedings, Virginia continued to have exclusive, continuing jurisdiction under the UCCJEA until the conclusion of the custody matter, despite the fact that Upson and Georgiana ceased to live there. See D.C.Code §§ 16-4602.01(a)(1) & (2), -4602.02(a).
Id. at 1164.
This outcome is supported by the comment to section 202 ("Exclusive, Continuing Jurisdiction") of the model act on which the local UCCJEA provisions are based, which states:
Jurisdiction attaches at the commencement of a proceeding. If State A had jurisdiction under this section at the time a modification proceeding was commenced there, it would not be lost by all parties moving out of the State prior to the conclusion of proceeding. State B would not have jurisdiction to hear a modification unless State A decided that State B was more appropriate under Section 207.
UCCJEA § 202 cmt. 2. Although the commentary refers to a modification proceeding, the principle should apply equally to an initial custody determination, as held here by the District of Columbia Court of Appeals.