In re Marriage of Greenlaw – Child Custody – Jurisdiction
In re Marriage of Greenlaw and Smith, 123 Wn.2d 593, 869 P.2d 1024, cert. denied, 513 U.S. 935, 115 S.Ct. 333, 130 L.Ed.2d 617 (1994).
NATURE OF THE CASE: This family law case involved a dispute over the ability to modify a custody decree once a new home state is established.
FACTS: H and W were married in 1978 and their son Alex was born the same year. The marriage dissolved in 1982 when the Alex was 3 years old and W was granted custody. In 1985, when Alex was seven years old, W accepted a three year assignment with the United States Army in Germany.
W placed Alex in a German speaking boarding school during that time and the boy only saw his mother on occasional weekends and holidays. W and the boy relocated to California in 1988 and moved a total of four times between 1988 and 1990. Alex attended three different schools during that time. W enrolled in law school in San Jose in 1990. During that time Alex lived with her former boyfriend in Berkeley and only saw his mother on weekends and school vacations.
Alex saw a counselor while visiting his father in Tacoma who recommended that he live with the father after concluding that the mother had effectively abandoned Alex.
W denied allegations of abandonment and neglect. In 1991, H petitioned the Pierce County Court in Washington State to obtain custody. W responded by stating that California had jurisdiction. The court denied W’s motion, holding that Washington had significant contacts with the child and because an emergency existed. W appealed and the Court of Appeals reversed holding that Washington did not have subject matter jurisdiction and this appeal resulted.
ISSUE: Does a state have continuing jurisdiction to modify its own custody orders after a child and custodial parent have established residence in another state?
RULE OF LAW: A state has continuing jurisdiction to modify its own custody orders after a child and custodial parent have established residence in another state, provided the child has continuing contacts with the state that are more than slight, and one of the parents remains in the state.
HOLDING AND DECISION: The UCCJA has provisions that allow a decree state continuing jurisdiction to modify its own custody orders. Under the UCCJA all petitions for modification are to be addressed to the prior state if that state has sufficient minimum contacts with the case to satisfy the UCCJA requirements. Exclusive continuing jurisdiction is not affected by the child’s residence in another state for six months or more. Even though the new state becomes the child’s home, significant connection jurisdiction continues in the state of the prior decree when the court record and other evidence exists in the original state and when one parent continues to reside therein.
The PKPA requires that the state have jurisdiction to modify a custody decree under the state’s own laws. The court must clearly distinguish between jurisdiction to determine initial custody and jurisdiction to modify a prior custody order. Under the present case that distinction was not made. Both the trial court and the appeals court failed to consider the presumption created by the UCCJA and PKPA that the decree state had continuing jurisdiction to modify its own order and other states must decline to do so until the decree state loses or declines jurisdiction.
Exclusive jurisdiction is maintained if one of the parents continues to reside in that state and the child has some connection with the decree state. Under these facts the father still resides in the state and the child visits him there. The local court also has all the files on this case regarding the history of the litigation, and the child has extended family from both the mother and the father in the state. The child is also mature enough to express his own opinion regarding with whom he wishes to live and he wants to live with his father. The denial of California jurisdiction was not an abuse of discretion based on the fact that California is the more convenient forum.
DISPOSITION: Reversed.
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