The Oklahoma Supreme Court recently decided a case concerning the jurisdictional underpinning of the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter UCCJEA), which raises questions regarding the role of the act. The case is In re N.A.,[1] a proceeding under the Children and Juvenile Code (the children’s code) to declare the children deprived. The children lived in Oklahoma, Kansas and Mexico. There was an issue as to whether Oklahoma was the children’s home state, a necessary determination under the UCCJEA in order for the state to make a determination as to their deprived status.

After batting down preliminary questions,[2] the court turned to the issue of jurisdiction under the UCCJEA. The jurisdiction of Oklahoma trial courts is set out in the Oklahoma Constitution in Article 7, Section 7. That section provides, “[T]he District Court shall have unlimited original jurisdiction of all justiciable matter.” Since deprived cases clearly fall within the normal standard of court cases, it follows that the court had subject matter jurisdiction.

The Supreme Court reasoned that since subject matter jurisdiction is controlled by the Oklahoma Constitution, it therefore could not be governed by the UCCJEA, as the Legislature cannot limit the jurisdiction of the courts granted by the Oklahoma Constitution. It was then left with the question of what is the UCCJEA. The court decided that the UCCJEA is an act that simply determines which of two competing states with jurisdiction should make a custody determination.

It noted that among its stated purposes, the UCCJEA is intended to avoid jurisdictional competition and conflict with courts of other states, promote cooperation with the courts of other states and avoid relitigation of custody decisions made by other states.[3] The court then said the UCCJEA does not confer subject matter jurisdiction on a state court, nor does it abrogate an Oklahoma district court's expansive, constitutionally conferred subject matter jurisdiction. The UCCJEA merely instructs the district court as to when it should and should not exercise its subject matter jurisdiction.

The court noted that prior UCCJEA cases have “loosely used the language of subject matter jurisdiction.”[4] It then held, “Let us be clear today, jurisdiction under the UCCJEA is a statutory, procedural limitation that prescribes circumstances under which the State district court should yield to another State's exercise of subject matter jurisdiction, but it does not remove the Oklahoma district court's constitutionally-conferred subject matter jurisdiction to adjudicate the deprived status of children and custody matters.”[5]

THE PROBLEMS

If the UCCJEA is merely a matter of deciding between two competent jurisdictions, which one should proceed, then some very interesting problems arise. The act is clearly more than that, given the fact that the structure of the UCCJEA refers to jurisdiction, relinquishment of jurisdiction and enforcement of judgments of other states. Insofar as jurisdiction is concerned, the act raises a number of issues with regard to the Oklahoma Supreme Court’s opinion.

Are the provisions of the UCCJEA waivable? Can the parties consent to appear in a forum that is not an appropriate forum under the UCCJEA? Can a judge raise the issue of noncompliance with the act if the parties do not? If the issue of noncompliance with the act is not raised at trial, can it be raised for the first time on appeal? Most importantly, if the case goes through to final order but is not appealed and is sought to be enforced in another state, can it be collaterally attacked in that state for lack of jurisdiction under the UCCJEA in the first state? All these issues are opened up by the N.A. opinion. Prior cases had clearly decided these issues by determining that the UCCJEA was an aspect of subject matter jurisdiction, but those cases did not consider the effect of the state constitution on the UCCJEA.

PRIOR CASES

The opinion in N.A. departs from what has been the common understanding of the role of the UCCJEA in determining the court’s jurisdiction. Those earlier cases were not so unclear. Despite the court’s reference to earlier cases as “loosely using the language of subject matter jurisdiction,” that language was at the heart of those cases. In Joliff v. Joliff,[6] the parties had two children. The mother moved from Idaho to Oklahoma with the parties’ daughter. The father and son remained in Idaho. The mother initiated divorce proceedings in Oklahoma and sought custody of both children. The trial court determined that since the daughter had lived in Oklahoma for six months, it had jurisdiction over that child and over the divorce and, therefore, must have jurisdiction over both children. The Oklahoma Supreme Court reversed as to the child in Idaho. It noted that the Uniform Child Custody Jurisdiction Act (UCCJA), the predecessor of the UCCJEA, established mandatory prerequisites for determining subject matter jurisdiction in custody cases. It quoted the seminal case in Oklahoma of Holt v. District Court,[7] a case not cited in N.A., where that court noted that the UCCJA went about the problem of the interstate child in a number of ways but primarily by “limiting the jurisdiction of courts to act in custody matters.”[8]

Primarily, with regard to subject matter jurisdiction, there is the case of Jones v. White,[9] where the parties were originally from New Hampshire and Massachusetts. The husband returned to Oklahoma, where he had previously lived, and filed for divorce. He alleged that the children had been living in Oklahoma for six months when they clearly had not. When the trial court held a special jurisdictional hearing, the parties indicated they simply wished to get the divorce over with. The trial court ultimately awarded joint custody with primary parenting responsibility to the father. The mother appealed the substantive custody determination.

The appellate panel, on its own, raised the question as to whether the case was properly tried in Oklahoma. It noted that the UCCJEA was a matter of subject matter jurisdiction and could not be waived by the parties. The decision in Jones v. White is fundamentally at odds with the decision in N.A. and would normally be considered overruled as a Court of Appeals decision inconsistent with a Supreme Court decision. Nonetheless, the Supreme Court, although it cited Jones v. White, did not expressly overrule it.

The Holt case noted there are always two questions in a child custody case: First, does an Oklahoma court have jurisdiction? Second, should an Oklahoma court exercise its jurisdiction? The court in N.A. seems to have eliminated the first question and limited the UCCJEA to only the second question. This appears to be in direct contravention of the UCCJEA itself.

THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

The UCCJEA, as set out in Title 43 Section 551-201, provides:

A. Except as otherwise provided in [Section 551-204] of this act, a court of this state has jurisdiction to make an initial child custody determination only if:

1. 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 (6) months before the commencement of the proceeding and the child is absent from this state, but a parent or person acting as a parent continues to live in this state;
2. A court of another state does not have jurisdiction under paragraph 1 of this subsection, 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 19 or 20 of this act, and:

a. the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence, and

b. substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;

3. All courts having jurisdiction under paragraph 1 or 2 of this subsection 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 19 or 20 of this act; or

4. No court of any other state would have jurisdiction under the criteria specified in paragraph 1, 2, or 3 of this subsection.

B. Subsection A of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

C. Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

The UCCJEA is designed to bring order out of the chaos that had been the nature of interstate child custody litigation, which was first attempted to be resolved by the act’s predecessor, the UCCJA. That act was revised by the UCCJEA to take account of the federal enactment of the Parental Kidnapping Prevention Act (PKPA).[10] The jurisdictional section of the UCCJEA is set out in two parts: 1) to tell a state court when it has the authority to adjudicate a child custody case and 2) when it should exercise that authority. This coincides with the decision of Holt v. District Court, which noted that there are two questions in any interstate case: 1) whether a state has jurisdiction and 2) whether it should exercise that jurisdiction.

Section 551-201 uses the term “jurisdiction.” It means the authority or ability of a court to make a custody determination. It is not personal jurisdiction, since that is explicitly not required by Subsection C of Section 551-201. If, indeed, subject matter jurisdiction flows from the Oklahoma Constitution, then what is the purpose of Section 551-201 of the UCCJEA? It is not simply a matter of determining which of two competent forums should proceed, as the court in N.A. noted. There are explicit sections of the UCCJEA that deal with that issue, including Section 551-207 on inconvenient forum and Section 551-208 on declining jurisdiction due to conduct.

The UCCJEA itself does not say that the ability of the court to decide a case is subject matter jurisdiction, although the official comment does say so.[11] However, the official comment cannot override the state constitution. Section 551-201 can probably, at best, be thought of as a limitation on the ability of the court to exercise its full power under its subject matter jurisdiction or a legislative limitation on the ability of the court to exercise its full jurisdictional power.

ENFORCEMENT OF JUDGMENTS

The problem of In re N.A. has come up in other states besides Oklahoma.[12] The question really becomes what the effect of these cases, like In re N.A., is on the UCCJEA. As a matter of interstate enforcement of interstate custody determinations, the effect of these cases should be minimal. While it is true in Oklahoma that, as a matter of state constitutional law, a state statute cannot limit the constitutionally conferred grant of judicial power on state trial courts, the Legislature can surely legislate concerning the effect in its state of foreign judgments. The UCCJEA attempts to eliminate the problems of the interstate child by limiting both jurisdiction in state courts and by limiting the enforcement of custody determinations to those made in accordance with its jurisdictional bases. The first is the attempted solution undermined by N.A. The second, however, resolves the problem of determining the effect of interstate custody determinations, even if it does nothing to affect the issue of intrastate jurisdiction.

The UCCJEA was written as a revision of the UCCJA. As such, it was stuck with much of the language of the original act, including the jurisdictional language of state courts. It certainly would have been much easier if the authors, in drafting the UCCJA, had written something like this:

Section 1

1. 1. A court has authority to make a child-custody determination only if:

a. A determination made in violation of Section 1 can be collaterally attacked at any time.

Nobody would have a problem with this. Unfortunately, they used the word "jurisdiction." Since they could not possibly be using the word in terms of "personal jurisdiction," courts assumed they were talking about "subject matter" jurisdiction. They should have invented another term since, as Barbara Atwood warned us long ago,[13] the importation of the rules on subject matter jurisdiction could only, in the long run, create confusion. And that is what has finally happened.

As far as interstate enforcement of custody determinations is concerned, the UCCJEA is not really concerned with whether the subsidiary issues associated with subject matter jurisdiction are followed or not. By this, I mean questions like whether UCCJEA jurisdiction can be raised for the first time on appeal and whether the provisions of the UCCJEA can be waived. However, for interstate enforcement, Section 551-301 of the UCCJEA uses the jurisdictional bases of Section 551-201 to determine which custody determinations made in one state are enforceable in other states and which are not.

Cases based on status jurisdiction leave it open to the individual states to determine which judgments from other states they will recognize, even if the full faith and credit clause of the U.S. Constitution does not require recognition. In May v. Anderson,[14] Justice Frankfurter's concurrence was to the effect that even though the full faith and credit clause did not require Ohio's recognition of Wisconsin's custody decree, Ohio could recognize it if it wished. Professor Bodenheimer built the entire UCCJA around Justice Frankfurter's concurrence, since she found that no workable statute could be written around Justice Burton’s plurality opinion, which viewed custody determinations as requiring personal jurisdiction. The Legislature can then determine whether it should enact a law that decides which custody determinations will be recognized and which will not be recognized. That is what the UCCJEA does. That is also what the federal PKPA does. Further, the UCCJEA was written in such a way that it requires recognition in those cases where the PKPA would also require recognition.

Cases like In re N.A. are not interstate cases. They are intrastate cases, and for intrastate purposes, Oklahoma could have whatever jurisdictional rules it chooses. But the bottom line for an Oklahoma attorney who has a custody case that is or may become an interstate case is that the UCCJEA cannot be ignored. It must be complied with. If the UCCJEA is not complied with, no other state will enforce that Oklahoma custody determination, since other states will only enforce custody determinations that are made in compliance with the jurisdictional standards of the UCCJEA. Further, if another state renders a UCCJEA-compliant determination contrary to an Oklahoma determination, Oklahoma will have to recognize it because the Oklahoma UCCJEA does require recognition of other states’ custody determinations made in accordance with the jurisdictional standards of the UCCJEA, even if the previous determination of Oklahoma had decided that the parties could “waive” the UCCJEA.

For example, in Jones v. White, discussed above, the Court of Civil Appeals decided the trial court had no jurisdiction under the UCCJEA and dismissed the case, even though the parties attempted to waive the applicability of the UCCJEA. The decision is now perhaps questionable under the doctrine of N.A., as the court did have subject matter jurisdiction under that case. However, had the court decided that the parties succeeded in waiving the UCCJEA, as the parties attempted to do, it would have been very problematic in the event of post-decree custody litigation.

The parties were actually from New Hampshire and Massachusetts. There seemed to be no question that this was an acrimonious divorce and that there would be post-divorce proceedings, which would take place in either New Hampshire or Massachusetts. Given that the Oklahoma determination in Jones v. White was not in accordance with the UCCJEA, it would not be enforceable in either state. However, whichever custody decree would be next rendered in accordance with the UCCJEA would be enforceable in Oklahoma. In that case, even though it might be proper as a matter of internal state law for the parties to waive the UCCJEA jurisdictional rules, as a matter of interstate enforcement of the custody determination, they should not do so.

The matter can be seen more starkly in the Illinois case of McCormick v. Robertson.[15] In that case, Joshua McCormick and Alexus Robertson met in Missouri in 2008. Mr. McCormick was a resident of Illinois. Ms. Robertson was a resident of Missouri. A brief relationship between the two resulted in a child, L.M., who was born in Missouri on April 23, 2009. In early 2010, Mr. McCormick filed a complaint in the circuit court of Champaign County, Illinois, pursuant to the Illinois Parentage Act.[16] Shortly after Ms. Robertson was served, she filed a written entry of appearance. That document, prepared by Mr. McCormick's attorney and signed by Ms. Robertson, stated that Ms. Robertson was waiving “all manner of summons and process” and submitting to the court's jurisdiction. The parents agreed they would have joint custody, although the child would live with the mother. The Illinois court approved the parties’ agreement and incorporated it into the decree. The decree thus contained a provision that they had submitted to the jurisdiction of Illinois and that the agreement should be construed according to the law of Illinois.

Two years later, Ms. Robertson moved to Las Vegas with L.M. Mr. McCormick cited her for contempt for violating the terms of the decree and ultimately filed a motion to modify custody of the child in Illinois. Ms. Robertson, in the meantime, initiated a custody proceeding in Nevada, arguing that the Illinois proceeding was invalid because it was conducted in violation of the UCCJEA in that L.M. was born in Missouri and was never in Illinois. At the same time, Ms. Robertson asked the Illinois court to dismiss Mr. McCormick’s modification proceeding on the ground that Illinois did not have jurisdiction to enter the original custody order. After a conference between the Nevada and Illinois judges, the Illinois case was dismissed for lack of subject matter jurisdiction in that the provisions of the UCCJEA were not satisfied.

Mr. McCormick appealed, and the intermediate Illinois appellate court reversed.[17] The Illinois Supreme Court granted a petition to appeal and affirmed the intermediate appellate court.[18] It found that subject matter jurisdiction is conferred by the Illinois Constitution, and the Legislature did not have the power to contract it.[19] Subject matter jurisdiction, the court said, “refers to the power of a court to hear and determine cases of the general class to which the proceeding in question belongs.” With few exceptions, a circuit court's subject matter jurisdiction is conferred by the state’s constitution. Thus, while the Legislature may create new matters for the judiciary to decide, its ability to do so does not extend or contract the court's jurisdiction.[20]

The UCCJEA, the Illinois court found, was a different matter. It is a statutory command concerning when a court may decide a certain case. In this case, it is clear that the trial court failed to meet the criteria of the UCCJEA with respect to initial child custody determinations. That means the decision was erroneous. However, that did not mean the trial court was without jurisdiction to make the erroneous determination. The court decided that the jurisdictional language of Section 201 of the UCCJEA “must be understood as simply a procedural limit on when the court may hear initial custody matters, not a precondition to the exercise of the court's inherent authority.”[21] It concluded that the appellate court was correct, and the trial court erred in dismissing the case due to a lack of subject matter jurisdiction.

Again, it is important to distinguish between jurisdiction to decide a case and recognition of judgments. Determining which decisions can be enforced and which cannot is clearly a matter within the competence of the Legislature, unlike state subject matter jurisdiction. Therefore, the question on remand in the Illinois case is: Which determination should be recognized: Illinois or Nevada? Section 303 of the UCCJEA mandates recognition of custody determinations if the court exercised jurisdiction in substantial conformity with the UCCJEA or the determination was made under factual circumstances meeting the jurisdictional standards of the UCCJEA, and the determination has not been modified in accordance with the UCCJEA. One of the defenses to registration, recognition and enforcement of a custody determination in sections 551-305, 551-306 and 551-308 of the UCCJEA is that the order sought to be enforced has been modified or superseded by a decision of a court with jurisdiction under the UCCJEA.

Here, it is absolutely clear. Nevada's determination is made in accordance with the UCCJEA and is entitled to be enforced. Illinois' determination was not made in accordance with the UCCJEA, and because of the UCCJEA-compliant Nevada order, it is therefore not enforceable, even in Illinois. The enforcement issue did not come up in the Illinois appellate opinions because it was not put at issue. If the issue had been phrased in terms of whether Illinois had to enforce the Nevada judgment as opposed to whether Illinois had jurisdiction to enter the original order, the case would have come out differently.

This issue did not arise in the Oklahoma case of N.A. because the court ultimately determined there had been compliance with the UCCJEA. Thus, the takeaway for attorneys practicing in states like Illinois and Oklahoma, which follow the position taken on subject matter jurisdiction in McCormick and N.A., is that the attorney had better be sure that the child custody determination conforms to the UCCJEA and, as a result thereof, the PKPA. Otherwise, it will not be enforced in any other state, and a contrary determination from another state made in accordance with the UCCJEA will be enforceable in the state granting the prior non-UCCJEA-compliant determination.

CONCLUSION

The term “jurisdiction” under the UCCJEA is a rather slippery term. Since it clearly does not refer to personal jurisdiction, it is unclear what it actually refers to, since the law knows only one other type of jurisdiction: subject matter jurisdiction. In state constitutional law, subject matter jurisdiction flows from the state constitution. While UCCJEA “jurisdiction” is not technically subject matter jurisdiction, it does refer to the trial court’s ability to hear and determine a custody case, whatever it might be called. For lack of a better term, the drafters of the original UCCJA called it jurisdiction. Both subsequent enactments (the PKPA and the UCCJEA) were stuck with that term. It still refers to the same thing: the ability of a court to hear and determine a child custody determination and the interstate enforcement of such a determination.

The UCCJEA is not concerned with the subsidiary issues of subject matter jurisdiction, such as waiver, raising the issue for the first time on appeal, etc. It is, however, concerned with the enforcement of interstate custody determinations that are not made in accordance with its terms. Such determinations are not enforceable. Thus, compliance with the UCCJEA is still mandatory for interstate enforcement of any custody determination. Therefore, even though the UCCJEA might not be able to limit the jurisdiction of state courts, it may indeed limit which determinations from other states are enforceable. It behooves an attorney to be sure that the custody determination does indeed comply with the UCCJEA so that it will be enforced in another state, should one party later relocate.

 

Author’s Note: The views in the article are solely those of the author and should in no way be attributed to the National Conference of Commissioners on Uniform State Laws. The author would like to acknowledge and thank Monica Dionisio and Carolyn Thompson for all their efforts and hard work in reviewing, editing and improving this article.

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ABOUT THE AUTHOR

Robert G. Spector is an internationally recognized expert in family law. He served as the reporter for the Uniform Child Custody Jurisdiction and Enforcement Act and on the Family Law Joint Editorial Board for the National Conference of Commissioners on Uniform State Laws. He has written several books on Oklahoma family law, and for many years, he served as a consultant to the OBA Family Law Section. He has received numerous awards from the OBA and the Family Law Section, including a lifetime achievement award.

 

 

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ENDNOTES

[1] 2025 OK 22, 567 P.3d 374.

[2] Issues concerning mootness since the children had already been returned to their mother on the basis of the collateral consequences doctrine and that the UCCJEA jurisdictional issues did not apply to the juvenile case.

[3] See 43 O.S., §551-101, cmt.

[4] See, e.g., Rader, 2020 OK 106, ¶7, 478 P.3d at 441 ("Whether a trial court has subject matter jurisdiction under the UCCJEA is a question of law this Court reviews de novo."); White v. Adoption of Baby Boy D., 2000 OK 44, ¶38, 10 P.3d 212, 220 (quoting In Interest of L.S., 1997 OK 109, ¶6, 943 P.2d 621, 622) (the UCCJEA's predecessor, "[t]he UCCJA is the exclusive method in Oklahoma to determine subject matter jurisdiction in all custody proceedings."); Joliff v. Joliff, 1992 OK 38, ¶6, 829 P.2d 34, 36 ("The Uniform Child Custody Jurisdiction Act (UCCJA) established mandatory prerequisites for determining subject matter jurisdiction in custody cases in Oklahoma."). Recently, the Oklahoma Court of Civil Appeals declared, "The UCCJEA pertains to the court's subject matter jurisdiction." H.M.A., 2025 OK CIV APP 2, ¶10, 563 P.3d at 317; see also Jones v. White, 2018 OK CIV APP 68, ¶¶28-34, 430 P.3d 544, 550-551 (finding the parties may not agree, consent, acquiesce or stipulate to subject matter jurisdiction for purposes of an initial child custody determination).

[5] The court then applied the UCCJEA to hold that Oklahoma was the child’s home state and that, under the children’s code, the child was deprived. I have no quarrel with the court’s holding on these issues. My concern extends only to the court’s discussion of the jurisdictional underpinning of the UCCJEA.

[6] 1992 OK 38, 829 P.2d 34.

[7] 1992 OK 38, 829 P.2d 34.

[8] 1981 OK 39, 626 P.2d 1336.

[9] 2018 OK CIV APP 68, 430 P.3d 544.

[10] 28 U.S.C. §1738A. This section was enacted to bring full faith and credit enforcement to child custody determinations that had been lacking since child custody determinations were not considered final at common law. The PKPA differed in significant ways from the UCCJA, thus necessitating a revision of that act into the now UCCJEA, which was drafted to fit within the PKPA. Thus, for interstate purposes, complying with the UCCJEA ensures that the PKPA will also be complied with. The UCCJEA has been adopted in 49 of the states and most territories.

[11] As the reporter for the UCCJEA, I was loath to insert the comment. However, the drafting committee of the UCCJEA specifically wanted this comment inserted and indeed that is the law in most states that view the issue in the traditional sense of the UCCJEA as an aspect of subject matter jurisdiction. Those states, however, have not considered the role of their state constitutions in determining whether the UCCJEA can indeed limit the subject matter jurisdiction of state courts.

[12] Hightower v. Myers, 304 S.W. 3d 727 (Mo. 2010). See also In re J.W. 267 Cal. Rptr.3d 347 (2020); Williams v. Williams, 555 N.E.2.2d 142 (Ind. 1990); Interest of D.S., 602 S.W.3d 504 (Tex. 2020); McCormick v. Robertson, 28 N.E.3d 795 (Ill 2015).

[13] Barbara Atwood, “Child Custody Jurisdiction and Territoriality,” 52 Ohio St. L. J. 369.

[14] 345 U.S. 528 (1953).

[15] 28 N.E.3d 795 (Ill 2015).

[16] 750 ILCS 45/1 et seq.

[17] McCormick v. Robertson, 15 N.E.3d 968 (Ill Ct. App. 2014).

[18] McCormick v. Robertson, 28 N.E.3d 795 (Ill 2015).

[19] Ill. Const. 1970, art. VI, §9.

[20] People ex rel. Graf v. Village of Lake Bluff, 795 N.E.2d 281 (Ill. 2003).

[21] 28 N.E.3d, 795, at 803.