UCCJEA “No Other State” Jurisdiction: Service, Misused Emergency Orders, and Intercourt Coordination

Commentary on Hughes v. Waters, 2026 ND 20 (N.D. Feb. 5, 2026)

1. Introduction

Hughes v. Waters arose from a multi-state custody dispute after David Hughes kept two children (D.H. and C.H.) in North Dakota at the end of a summer visit and refused to return them to their mother, Dana Waters, who had recently moved with the children to California. Both parents initiated proceedings in different states: Waters filed in California (August 9, 2023) but did not serve Hughes until October 20, 2023; Hughes served Waters with a North Dakota summons on August 30, 2023.

The central issue on appeal was jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA): whether North Dakota could make an initial custody determination despite Waters’ earlier-filed California case and California ex parte orders directing return of the children.

2. Summary of the Opinion

The North Dakota Supreme Court affirmed, holding North Dakota properly exercised UCCJEA jurisdiction because: (1) California’s “temporary emergency jurisdiction” order was invalid where the children were not present in California; (2) California had not acquired personal jurisdiction over Hughes when it issued its later ex parte order because Hughes had not yet been served; (3) neither California nor North Dakota was the children’s “home state”; and (4) by the time North Dakota assumed jurisdiction, no other state court “would have jurisdiction” under the UCCJEA’s primary pathways, permitting North Dakota jurisdiction under the statute’s residual provision (N.D.C.C. § 14-14.1-12(1)(d)).

The Court also declined to address Waters’ Parental Kidnapping Prevention Act (PKPA) reference because it was not adequately developed.

3. Analysis

3.1 Precedents Cited

  • Kubal v. Anderson, 2024 ND 123, ¶ 5, 8 N.W.3d 811
    The Court used Kubal v. Anderson for the standard of review: UCCJEA jurisdiction is a mixed question of law and fact—factual findings are reviewed for clear error, while legal questions are reviewed de novo. This framing matters because Waters’ challenge attempted to treat California’s orders as dispositive; the North Dakota Court instead independently assessed the legal sufficiency of the jurisdictional predicates.
  • Indep. Bankers Tr. Co. v. Superior Ct., 138 Cal.App.3d. 238, 241 (Cal. Ct. App. 1982)
    Cited for a California procedural principle with jurisdictional consequences: although a California action is “commenced” upon filing, “the issuance and service of summons is a prerequisite to acquisition of jurisdiction.” The North Dakota Court relied on this to discount the effect of California’s October 2023 ex parte order issued before Hughes was served, supporting the conclusion that North Dakota obtained jurisdiction over the parties first.
  • Castro v. Castro, 2012 ND 137, ¶ 10, 818 N.W.2d 753
    Used to emphasize that the UCCJEA contemplates judicial cooperation to prevent simultaneous proceedings. Here, the North Dakota judge contacted the California judge, followed by a status conference phone call, and the parties were afforded a chance to submit written jurisdictional arguments—conduct the Court treated as consistent with UCCJEA coordination requirements.
  • Hoever v. Wilder, 2024 ND 58, ¶ 5, 5 N.W.3d 544
    Cited for appellate waiver principles: a “naked reference” to a statute without articulated analysis is inadequate. The Court invoked this to decline consideration of the PKPA argument.

3.2 Legal Reasoning

The Court’s reasoning proceeds through the UCCJEA’s jurisdictional architecture, focusing on what authority (if any) California had and whether any state qualified as the children’s “home state.”

  1. California’s emergency jurisdiction failed because the children were not present in California.
    California’s emergency jurisdiction statute (Cal. Fam. Code § 3424(a))—mirroring North Dakota’s (N.D.C.C. § 14-14.1-15(1))— requires that “the child is present in this state.” Because the children were in North Dakota when the August 9, 2023 ex parte order issued, the Court concluded California’s invocation of emergency jurisdiction was “misplaced.” The practical significance is that an ex parte “emergency” label does not create jurisdiction when the statute’s threshold facts are absent.
  2. The later California ex parte order did not cure the problem because California had not acquired jurisdiction over Hughes.
    The October 17, 2023 ex parte order stated it was “not to be considered a temporary order,” meaning it was not an emergency order. Yet Hughes still had not been served in California until October 20, 2023. Relying on Indep. Bankers Tr. Co. v. Superior Ct., the Court treated service as a prerequisite to California’s acquisition of jurisdiction, and emphasized that Waters was served in North Dakota on August 30, 2023.
    Doctrinal takeaway: In this case’s posture, “first filed” in another state did not control where service lag prevented that state from acquiring jurisdiction over the opposing party before North Dakota did.
  3. No state was a UCCJEA “home state,” triggering the residual jurisdiction pathway.
    A “home state” requires the child to have lived in the state with a parent (or person acting as a parent) for at least six consecutive months immediately before commencement. The children had been in California about two months before the summer trip; they likewise had not lived in North Dakota for six months. With no home state and no proven competing proceeding in Washington (despite an apparent California “transfer”), the Court upheld North Dakota’s reliance on N.D.C.C. § 14-14.1-12(1)(d): North Dakota may exercise initial jurisdiction if “no court of any other state would have jurisdiction” under the other criteria.
  4. UCCJEA coordination and procedural fairness were satisfied.
    The judges communicated and agreed to permit written argument in the North Dakota case. Critically, Waters did not file a brief supporting California jurisdiction after being given the opportunity. The Court treated these steps as aligning with the UCCJEA’s expectation of coordination and the requirement that parties have an opportunity to present facts and legal arguments before a jurisdiction decision is made (referencing N.D.C.C. § 14-14.1-09(1) and (2)).
  5. Undeveloped federal PKPA arguments are waived.
    Waters’ PKPA reference lacked analysis connecting facts to statutory requirements. Applying Hoever v. Wilder, the Court refused to construct the argument for her.

3.3 Impact

  • Constraining out-of-state ex parte “emergency” custody orders: The decision reinforces that emergency jurisdiction depends on statutory prerequisites—especially the child’s presence in the state. Courts and litigants should expect scrutiny of emergency orders when the child is elsewhere.
  • Service timing can be outcome-determinative in multi-state custody races: While UCCJEA analysis is not merely a “race to the courthouse,” this opinion highlights that lack of service can undermine a state’s ability to claim jurisdiction, even if the case was filed earlier.
  • Expanded practical use of UCCJEA residual jurisdiction (N.D.C.C. § 14-14.1-12(1)(d)): When children are in transit between states and no home state exists, North Dakota courts may more readily rely on the “no other state would have jurisdiction” provision—especially where a competing forum is uncertain, inactive, or procedurally defective.
  • Appellate practice signal: The Court’s PKPA treatment underscores that federal preemption-type arguments require real briefing; mere citation will not preserve the issue.

4. Complex Concepts Simplified

  • UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act): A uniform state-law framework allocating which state’s court gets to decide custody, designed to prevent dueling orders.
  • Home state: Usually the state where the child lived for the last six consecutive months before the custody case began. It is the primary basis for jurisdiction in most cases.
  • Temporary emergency jurisdiction: A narrow, short-term power to protect a child from immediate danger, typically requiring that the child be physically present in the state issuing the emergency order.
  • Residual (“no other state”) jurisdiction: If no state qualifies under the UCCJEA’s main jurisdictional bases, a state may decide custody if no other state would have jurisdiction under those criteria.
  • PKPA (Parental Kidnapping Prevention Act): A federal statute requiring states to give full faith and credit to certain child custody determinations made consistently with its jurisdictional rules; however, it must be specifically argued and applied to the facts to matter on appeal.

5. Conclusion

Hughes v. Waters clarifies that (1) emergency custody jurisdiction cannot be asserted by a state where the child is not present; (2) ex parte orders do not substitute for proper jurisdictional foundations, including timely service; and (3) when no home state exists and no other state can validly proceed, North Dakota may exercise initial custody jurisdiction under the UCCJEA’s residual “no other state would have jurisdiction” provision. The decision also reinforces a practical lesson for litigants: jurisdictional objections and federal overlay statutes like the PKPA must be developed with concrete legal analysis, or they will be treated as waived.