Previous Child Custody Determination
Please review my previous AVVO Legal Guides on Interstate Custody and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA; in Washington State the statute is RCW 26.26). The UCCJEA provides that when a state in the US has previously entered a child custody determination, that state will continue to exercise jurisdiction until it waives or declines jurisdiction.
Home State Jurisdiction (Including Foreign Countries)
When there is no prior court order on custody or visitation, RCW 26.27.201(1)(a) provides that the initial inquiry for UCCJEA jurisdiction will be whether or not the child has a "home state," as defined by RCW 26.27.021. RCW 26.27.021(7) defines the home state of the child as the place where the child has lived for six months prior to the commencement of the proceeding. RCW 26.27.051(1) provides that "a court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying Articles 1 and 2." Therefore, if the child has lived in Japan for more than six months, Japan would normally be considered to be the "home state" of the child under RCW 26.27.201(1)(a).
Status of Forces Agreement (SOFA) in Japan
However, Under the Status of Forces Agreement (SOFA), a treaty signed between the US and Japan, U.S. service members and their dependents "...shall not be considered as acquiring any right to permanent residence or domicile in the territories of Japan." For this reason, Japan will not make a custody determination for children of US service members due to the SOFA. When the parents reside in a state or country for more than six months, but intend to reside there only for a temporary period, and do not intend to return to that state or country, it is not a "home state" within the meaning of RCW 26.27.021(7). C.f. Hudson v. Hudson, 35 Wn.App. 822, 670 P.2d 287 (1983). Therefore, Japan will normally not be the home state of the child of a US service member.
SOFA Precludes Japanese Jurisdiction in Military Custody Cases
Pursuant to the SOFA treaty with the US, Japan will not take jurisdiction over the children of US military service members, unless one parent is Japanese and the child has Japanese citizenship. The Status of Forces Agreement (SOFA) between Japan and the U.S. specifically provides that U.S. forces and their dependents "shall not be considered as acquiring any right to permanent residence or domicile in the territories of Japan." This precludes Japan from making child custody determinations as no child becomes a true resident of Okinawa/Japan.
SOFA ARTICLE IX provides: 1. The United States may bring into Japan persons who are members of the United States armed forces, the civilian component, and their dependents, subject to the provisions of this Article. 2. Members of the United States armed forces shall be exempt from Japanese passport and visa laws and regulations. Members of the United States armed forces, the civilian component, and their dependents shall be exempt from Japanese laws and regulations on the registration and control of aliens, but shall not be considered as acquiring any right to permanent residence or domicile in the territories of Japan....
Most Convenient Forum
RCW 26.27.201(1) (b) states when there is no home state of the child or that state declines to exercise jurisdiction, the more appropriate forum should take jurisdiction. Washington may the most convenient forum to make custody decisions if the child has more connections to Washington State than to any other state. These connections can be past residence in Washington; an intent of one or both parents to eventually live there; Washington being the military "home of record"; the existence in Washington of medical or educational records, family ties, and friends; the mentioning of Washington State in the military "Family Care Plan"; or the presence in Washington of witnesses about the parents' child care history.
By contrast, RCW 26.27.261 indicates when a court is an inconvenient forum. The first issue mentioned in the statute is a history of domestic violence. Another factor mentioned in RCW 26.27.261(2)(e) is an agreement between the parties as to which state should assume jurisdiction. If one parent has previously agreed that Washington state would decide issues of custody, that is a fact the court can consider in deciding whether to exercise jurisdiction.
RCW 26.27.201 (1) (d) provides a solution for those cases in which there seems to be no state which has jurisdiction. It provides that: ...[A] court of this state has jurisdiction to make an initial child custody determination...if: ... (d) No court of any other state would have jurisdiction under the criteria specified in (a), (b), or (c) of this subsection. This "vacuum jurisdiction" provision applies when the child has no home state, there is no convenient American forum, no state has any substantial witnesses or evidence about custody, and the child has no significant connection to any other state. Such a situation would leave the parties in a jurisdictional vacuum. RCW 26.27.201 (d) applies when "No court of any other state would have jurisdiction...." If the Court finds no other basis for jurisdiction, it should apply this "vacuum jurisdiction" provision of the UCCJEA.
The Need for an Early Decision on Custody
Many things must be done by a parent prior to departure from Japan. They will have to notify the military whether they will be traveling alone or with the child; make plane reservations; contact the new school and day care; and set up the necessary residential arrangements. The State with the most significant connections, more convenient forum, or "vacuum jurisdiction," must resolve these issues before travel plans can be made. If the parties agree and can articulate minimal grounds for jurisdiction, the Courts should be amenable to taking jurisdiction. If the parties don't agree, it may essentially boil down to a race to the court house. However, courts with competing grounds for jurisdiction when no prior custody order has issued are required to consult with each other under the UCCJEA before making a decision.
"Vacuum Jurisdiction" Allows Difficult Custody Issues to be Decided
RCW 26.27.201 (1) (d) was intended to resolve those cases where no other basis of jurisdiction is provided under the UCCJEA, but some state nevertheless must enter a Parenting Plan. This conclusion is supported by the following quote from Horenstein, Washington Practice, Volume 17, Family and Community Property Law, ? 24.11 (page 137): Washington Court may assume jurisdiction over a custody proceeding when it appears that no state is the child's home state, there is no state with which the child and a party have significant connections and no state is been determined to be the more appropriate forum by the child's home state. Thus, for example, if a couple meets while in the military while overseas and they come from different states they marry, conceive a child, the child is born and raised overseas, and then the couple separate in view of their respective discharges, this provision comes into play. The first party to file will often have a paramount claim to jurisdiction.
Service of Process
Notice of a child custody case filed under the UCCJEA to "a person outside this state may be given by personal service [RCW 26.27.081(1)(a)] or certified mail [RCW 26.27.081(1)(b)]." It is often prudent to serve Respondent in both manners. Statutory notice is not required for the exercise of jurisdiction with respect to a person who submits to the jurisdiction of the court. RCW 26.27.081(3). Service by one of the statutory methods will normally suffice to establish personal jurisdiction to someone living outside of Washington State. See, e.g., Hudson v. Hudson, 35 Wn.App. 822, 670 P.2d 287 (1983); and In re Marriage of Tsarbopoulos, 125 Wn.App 273, 104 P.3d 692 (2004). Courts in Washington State may adjudicate child custody issues under the UCCJEA without acquiring personal jurisdiction over the absent party, as long as the absent party has been given adequate notice under all the circumstances. Hudson v. Hudson, supra.
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