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JURISDICTIONAL REQUIREMENTS IN DOMESTIC
RELATIONS CASES
(c) Nelson & Booth
Introduction
In order to for courts to properly
any domestic relations case, the state in which that action is instituted
must have proper “jurisdiction.” “Jurisdiction”
determines whether any particular court has the “power” or
ability to consider a particular issue that is presented.
Jurisdictional requirements are
different for different issues. It is important to note that with the
increasingly mobile American society, more than one state may have
jurisdiction over various issues that may be raised in the domestic
relations case. Thus, the power of a court to consider and make orders for
dissolution of the marriage, determination of parentage, dividing property,
and determination of issues regarding child custody, residency, parenting
time, third party visitation and child and spousal support issues all
require some consideration of jurisdiction.
There are two different kinds of
jurisdiction that may be required in
order that a court can properly adjudicate any particular domestic
relations issue: (1) jurisdiction over the subject matter of the case
(“subject matter jursidiction”) and
(2) jurisdiction over the persons before it (in personam jurisdiction).
Subject Matter Jurisdiction
Subject matter jurisdiction relates
to the power of the court itself to hear the “subject” of a
case, regardless whether the parties appearing before it desire that court
to decide the case. If a court does not have “subject matter jurisdiction”
it cannot make an enforceable decision in the case no matter the desires of
the parties and even though all of the parties appearing before the court
request the court assume jurisdiction to hear and decide the issues
presented. Subject matter jurisdiction cannot be waived by the parties.
Further, if the lack of subject matter jurisdiction is not initially
addressed, it may be raised at any later time – even after a decision
has been issued, even on appeal – though the issue may not have been
raised to or addressed by the trial court level.
The court itself has a duty to
determine that it has jurisdiction over the subject matter of every case
that comes before it whether or not the issue is raised by the parties or
their attorneys. If a court does not have subject matter jurisdiction, the
court must dismiss any case – or not consider any issue – which
fails the requirements of subject matter jursidiction.
Subject matter jurisdiction, therefore, constitutes a determination of
whether the particular court in which a matter is filed has the power to
hear and decide the matter, rather than a measurement of the extent to
which the court can exercise the power available to it.
Personal Jurisdiction
Personal jurisdiction, on the other
hand, is a determination of whether the court can exercise the power it has
over the specific parties appearing before it. Personal jurisdiction
determines whether a court can exercise its power in such a way as to bind
or obligate a party appearing before it to the orders made by the court.
Issues of personal jurisdiction do not address the
type of action the court can hear but, instead, deal with the nature of the
interest a particular court has in determining the issues between the
parties appearing before it. Personal jurisdiction may be obtained either
by service of the lawsuit within the boundaries of the state in which the
suit has been filed or service of the lawsuit in accordance with the
“long-arm statute” of the state in which the action is filed.
Personal jurisdiction must be
obtained by compliance with the requirements set forth in a state’s
statutes for service of a case. Thus, If service of process is made upon a
person while that person is within the boundaries of the state, the
state’s courts have power over that person for all purposes requiring
in personam jurisdiction. This is true even
though the person served had no relationship with the state other than that
service of process was completed within the state’s boundaries.
Service is complete upon compliance with the appropriate statutory service
method. It has been held that there is appropriate personal jurisdiction
where a father was served with an action for child support while he was
visiting his children in the state though he had no other contact with the
state.
Jurisdiction over the Marital Relationship
Courts have jurisdiction to a grant
a dissolution of marriage to any married person who lives in the state,
regardless where the other party lives so long as statutory requirements
for residency are met. Only one party need be a resident of the state for
the time required by the statutes for the court to be allowed to dissolve
the marriage[1] — the power of the court need only attach to the status
of the marriage. A marriage exists or has its situs wherever either party
to the marriage resides. One spouse may have a residence separate and apart
from the other spouse, and the marriage exists in the state in which each
party resides.
Absent personal jurisdiction over
the party against whom the dissolution action is filed, however, a court is
limited to the rendition of a judgment affecting the status of the parties
within the court’s jurisdiction – even if personal service of the action has
been made on the defending party (unless that service was had within the
state’s boundaries). In such a case, only an action which affects the
marital status can be granted, as the court only has the power to dissolve
the parties’ marriage, not to make any financial orders, nor make any
orders which require personal jurisdiction.
Jurisdiction to Distrbute Assets and
Debt
In addition to the power to
dissolve a marriage by way of divorce or annulment, when only one party is
subject to the jurisdiction of the state, the courts of that state can only
divide the property that is physically present within the state’s
boundaries. Accordingly, although there may be no personal jurisdiction
over the party against whom an action is filed, if all the property of the
parties is located within the state at the time of the action, a Kansas
court can determine the way in which that property should be divided
— even if it is to give all the property to the party who resides in
the state to the exclusion of the other.
Although Kansas courts can dissolve
a marriage and can determine all rights and claim to property which is
within the state’s territorial boundaries, if the state does not have
personal jurisdiction over both parties, a Kansas court does not have
jurisdiction to divide any property which lies outside the boundaries of
the state or to impose any personal financial obligation on a nonresident.
Personal financial obligations do not constitute a “res” as
does tangible personal or real property. In order to have power to issue
binding decisions imposing personal financial obligations on a party or to
divide the entirety of the parties’ property and financial
obligations, the court must have full in personam
jurisdiction over both parties.
Jurisdiction for Initial Determinations of Child Custody,
Residency, Parenting Time and Visitation.
Jurisdiction for Child Custody,
Residency, Parenting Time and Visitation issues is governed by the Uniform
Child Custody Jurisdiction and Enforcement Act (UCCJEA). Prior to July
1, 2000,
these cases were governed by the Uniform Child Custody Jurisdiction Act
(UCCJA). Generally, these Acts (one or the other of which have been adopted
in all 50 states and which have been substantially incorporated into a
similar federal law) provides that a State has the power to determine child
custody and visitation issues under one of the following situations when no
action involving custody of the child has been previously been filed:
(1)
The
child has lived in the state for a period of more than 6 months before the
commencement of the proceeding, (“home state” jurisdiction) or
(2)
Within
6 months prior to initiation of the action the state had been the
child’s home state for a period of more than 6 months and the child
is absent from this state because the child’s removal or retention by
a person claiming the child’s custody or for other reasons, and a
parent or person acting as parent continues to live in this state,
(“home state” jurisdiction) or
(3)
If
the child has not lived in any one state for more than 6 months within 6
months of the filing of the action (there is no “home state”),
and no action involving custody of the child has been filed before, a State
may assume power over the child
if (A) the child and the child’s parents, or the child and at least
one of the child’s parents, have a “significant connection”
with this state, and (B) there is
available in the state substantial evidence concerning the child’s
present and future care, protection, training, and personal relationships.
(“significant connection” jurisdiction) or
(4)
If
there is an “emergency situation” such as abandonment of the
child by the child’s parents, a court of this state may exercise
jurisdiction to protect the child until a court with appropriate
jurisdiction is able to exercise that jurisdiction (“emergency”
jurisdiction).
For purposes of child custody,
residency, parenting time and
visitation determinations, it is important to know where the child lives—not where
either the parent has lived, although it is not always determinative of the
state that has jurisdiction over the case. Although the parent against whom
a child custody residency or parenting time action has been filed may not
have any connection with the state in which the action is filed, if the child satisfies the UCCJA
requirements, sufficient jurisdiction is established.
Jurisdiction for Modification of Child Custody, Residency,
Parenting Time and Third Party Visitation.
After child custody and visitation
issues have initially been determined, the court which made those
determinations retains the power to make orders regarding those issues
– regardless of whether one of the parties moves outside that state.
If both parties move out of that
state, however, the initial court may lose its power to deal with
continuing child custody residency, parenting time and visitation issues.
In such a case, the state where the child has lived for 6 months or more
would become the appropriate place for further child custody and visitation
litigation or the state that has the more “significant
connections.”
Jurisdiction to Determine and
Modify Child Support.
Regardless of where child custody
and visitation issues may properly be
litigated, in order for a state to determine issues of child
support, only that state which satisfies one of the requirements provided
in the Uniform Interstate Family Support Act (UIFSA) in order to issue a
valid order of child support.
Jurisdiction under UIFSA is
established if the person against whom a child support order is sought to
be established or modified:
(1) is personally served with process within the
state; or
(2) submits to the jurisdiction of the state’s
courts; or
(3) resided with the subject child within the state;
or
(4) resided in the state and provided prenatal
expenses or support to the child; or
(5) has caused
the child to reside in this state by the alleged obligor’s acts and
directives; or
(6) engaged in sexual intercourse in the state and the
child may have been conceived as a result of that act of sexual
intercourse; or
(7) asserted parentage in the putative father registry
maintained by the state SRS; or
(8) is subject to personal jurisdiction on any other
constitutionally sound basis.
Every state has enacted and must comply with the
provisions of the Uniform Interstate Family Support Act (UIFSA) in determining
its jurisdiction to issue orders for child support.
Once both parents and the child have moved out of the
state that issued any initial child support order, the original state
automatically loses its jurisdiction to modify any orders for child support
(although it may continue to enforce the child support orders issued by it
or any other court having jurisdiction). Instead, the parent seeking to
modify child support must file the
request for modification in the state in which that other parent lives.
Notwithstanding the fact that the amount of child support will then be
determined by that new state, the duration that child support would be paid
is conclusively established by the laws of the state in which the child
support order originated.
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