Opinion
No. KNO FA 09-4111598 S
September 2, 2009
MEMORANDUM OF DECISION ON CHILD CUSTODY JURISDICTION
Plaintiff initiated this action seeking a dissolution of her marriage and custody of the parties' minor child, Lyndsey Downs, born November 24, 2008. One week after filing her complaint, she filed a motion captioned "Ex Parte Motion for Advice/Order, Pendente lite," which brought to this court's attention the existence of questions concerning the court's jurisdiction to enter any order as to Lyndsey's custody.
On August 26, and continued to September 2, this court conducted a hearing on the jurisdictional issue. Plaintiff and her attorney were present here in Connecticut, while Mr. Downs was present before the Honorable William Patrick, a judge of the Superior Court of California, County of Butte. The two courts conducted these hearings simultaneously, via a telephonic connection. A record has been made of both proceedings.
The facts which led to this unusual procedure are not truly contested, although the parties are at odds as to their legal import. This court makes the following findings:
1) Sean Downs and Abbigail Downs married on April 18, 2008, in Killeen, Texas.
2) Lyndsey Downs was born on November 24, 2008 in Texas.
3) On or about February 15, 2009, they moved to California and remained there as a family unit through approximately July 12 of this year.
4) On or about July 12, plaintiff left California with Lyndsey and came to Connecticut. Lyndsey's entire contact with this state is, therefore, of less than two months' duration.
CT Page 14756
5) On July 16, plaintiff's counsel initiated this action by issuing a complaint seeking dissolution of the marriage and a custody order. This process was served upon Mr. Downs at his place of residence in Chico, California, on July 23, and filed in the clerk's office of this court on August 4. He filed an appearance here on August 10 and has actual notice of the proceedings in this state.
6) On July 29, Mr. Downs filed an action for dissolution of the parties' marriage in the Superior Court of California, County of Butte, captioned "In re the Marriage of Downs, Sean and Abbigail," docket number FL036828. He moved for an immediate order of custody which came before that court on August 5. At that time, Judge Patrick continued the matter until August 19 to determine what stance Connecticut would take concerning its jurisdiction over Lyndsey's custody. (The August 19 hearing was postponed by agreement to August 26.)
7) Neither California nor Connecticut is the "home state" of this child, as she has not lived in either state for a full six months.
8) In evaluating alternative statutory grounds for this court's exercise of jurisdiction, it is found that Lyndsey's significant contacts with California consist primarily of her paternal relatives, including her father. Her significant contacts with Connecticut consist primarily of her maternal relatives, including her mother. She received limited medical attention in California, apparently sufficient to her needs. Her mother has had her examined by a Connecticut pediatrician, but there is no evidence that any medical condition requires her to remain in the care of this professional, or that any medical need of the child has gone unmet in either state.
9) Ms. Downs' removal of Lyndsey from California to Connecticut, whatever her motives, was done without notice to or approval of Mr. Downs.
It is this court's obligation to determine under the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA) that it has jurisdiction to make an initial determination as to Lyndsey's custody. Scott v. Somers, 97 Conn.App. 46, 903 A.2d 663 (2006). This duty implicates the subject matter jurisdiction of the court and hence must be raised and determined by the court on its own motion if not formally raised by the parties. Absent a statutory basis for such exercise of jurisdiction, the parties cannot by agreement confer such jurisdiction upon the court. Muller v. Muller, 43 Conn.App. 327, 682 A.2d 1089 (1996).
The Uniform Child Custody Jurisdiction and Enforcement Act has been codified in California as Sections 3400-3465 of the Family Code, and in Connecticut as Sections 46b-115 through 115jj of the General Statutes.
Though not mirror images of each other, the laws of both California and Connecticut contain relatively similar enactments of the provisions of Section 3 of the UCCJEA. This section sets forth the standard by which a determination of jurisdiction to enter an initial custody order must be made. Its first test, embodied in subsection (a)(1) of the California statute, but in subsections (a)(1) and (2) of Connecticut's, uses the home state as the litmus test on this issue. It is clear that Connecticut, at least, is not Lyndsey's home state.
Cal. Fam. Code § 3421 reads as follows:
(a) Except as otherwise provided in Section 3424, a court of this state has jurisdiction to make an initial child custody determination only if any of the following are true:
(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 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), or a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum under Section 3427 or 3428, and both of the following are true:
(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.
(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) 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 3427 or 3428.
(4) No court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3).
(b) Subdivision (a) 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. Conn. Gen Stat. § 46b-115k reads as follows:
(a) Except as otherwise provided in section 46b-115n, a court of this state has jurisdiction to make an initial child custody determination if:
(1) This state is the home state of the child on the date of the commencement of the child custody proceeding;
(2) This state was the home state of the child within six months of the commencement of the child custody proceeding, the child is absent from the state, and a parent or a person acting as a parent continues to reside in this state;
(3) A court of another state does not have jurisdiction under subdivisions (1) or (2) of this subsection, the child and at least one parent or person acting as a parent have a significant connection with this state other than mere physical presence, and there is substantial evidence available in this state concerning the child's care, protection, training and personal relationships;
(4) A court of another state which is the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under a provision substantially similar to section 46b-115q or section 46b-115r, the child and at least one parent or person acting as a parent have a significant connection with this state other than mere physical presence, and there is substantial evidence available in this state concerning the child's care, protection, training and personal relationships;
(5) All courts having jurisdiction under subdivisions (1) to (4), inclusive, of this subsection have declined jurisdiction on the ground that a court of this state is the more appropriate forum to determine custody under a provision substantially similar to section 46b-115q or section 46b-115r; or
(6) No court of any other state would have jurisdiction under subdivisions (1) to (5), inclusive, 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 second test (California's subsection (a)(2) and Connecticut's (a)(3) and (a)(4)) applies where there is no home state (or a home state declines to exercise jurisdiction). Application of this rule depends upon the court's findings as to the child's significant connections with the state proposed as the forum, and the substantiality of evidence which might be available in that state. While elements of this test arguably might be found in each state, there is no discernible preponderance favoring one over the other on this point. Since Lyndsey is an infant whose contacts with the world to date, given her age, have been largely through her family members, there is equipoise between the two states as to the "significant connections" she has with each state. The fact that she has had the care of a "medical clinic" in one state and of a "pediatrician" in the other does not tip the balance unless some significance is claimed as to her health needs. Since the parents of this infant are divided as to what is in her best interests, and no one other than members of their families are likely to appear as witnesses, the only "substantial evidence" which this court expects will be adduced in either forum will consist of the testimony of these relatives. The choice of forum will greatly determine the amount of such which each parent will be able to muster. This court does not find, on this test, that either tribunal is any better positioned than the other to decide the case.
The third and fourth tests raise considerations of judicial economy and comity, and are best utilized by the two courts determining cooperatively what is their most appropriate course of action.
Rather than submit to the considerations set forth in those two subsections, plaintiff argues that because Connecticut, inter alia, hosts the first action between the parties, this state is preclusively the appropriate forum under Conn. Gen. Stat. § 46b-115p. This statute is an enactment of Section 6 of the UCCJEA, which may be viewed as a tie-breaker in instances in which simultaneous proceedings have been filed in two states. Connecticut law does recognize that the issuance of a complaint by an attorney is the moment at which an action is commenced; Conn. Gen. Stat. § 52-45a; and July 16 is earlier than July 28.
Sec. 46b-115p. Simultaneous proceedings.
(a) Except as otherwise provided in section 46b-115n, if at the time of the commencement of the proceeding in this state a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction pursuant to a provision substantially similar to section 46b-115k, 46b-115l or 46b-115m, a court of this state shall not exercise jurisdiction. A court of this state may exercise jurisdiction if the proceeding in the other state has been terminated or is stayed by the court of the other state because such court has determined pursuant to a provision substantially similar to section 46b-115g, that a court in this state is a more convenient forum.
(b) Except as otherwise provided in section 46b-115n, the court shall, after review of relevant information provided to it, determine whether a child custody proceeding has been commenced in another state. If such proceeding has been commenced, the court in this state shall take appropriate action to communicate with the other court and to resolve which court shall have jurisdiction. If the court of this state determines that the court of the other state has jurisdiction pursuant to a provision substantially similar to section 46b-115k, 46b-115l or 46b-115m, the court of this state shall stay its proceeding while the court of the other state determines whether the court of this state is the more appropriate forum. If the court of the other state determines that the court of this state is not a more appropriate forum, the court of this state shall dismiss the proceeding.
(c) Except as otherwise provided in section 46b-115n, the court, in a proceeding to modify a child custody determination, shall after review of relevant information provided to it, determine whether a proceeding to enforce the determination has been commenced in another state. If the court determines that such enforcement proceeding has commenced, the court may (1) stay the proceeding for modification pending the entry of an order of the court of the other state enforcing, staying, denying or dismissing the proceeding for enforcement; (2) enjoin the parties from continuing with the proceeding for enforcement; or (3) proceed with the modification under conditions it considers appropriate.
(d) Except as otherwise provided in section 46b-115n, the court, in a proceeding to enforce a child custody determination, shall proceed, with regard to simultaneous proceedings, in accordance with the provisions of section 46b-115z.
No Connecticut courts have ever directly construed this provision. The court is mindful of decisions in other states which illuminate its meaning. These include the observation that the "first court" status is more appropriately assigned to that court which first issues an order relative to the custody of the child, as opposed to the first in which one of the parties files papers. In Peterson v. Peterson, 464 A.2d 202 (Me. 1983), in Hobbs v. Hobbs, 508 So.2d 677 (1987), and in Braden v. Braden, 217 Mich.App. 331, 551 NW.2d 467 (1996), the courts of those three states held that until one court has actually exercised jurisdiction the clock has not begun to tick on the first in time analysis.
This court further finds this "race to the courthouse" analysis unsatisfactory as applied to this case. While the court will not criticize Ms. Downs' motives for coming to Connecticut and filing here, it notes that this jurisdictional question would not exist but for her unilateral decision to come to Connecticut unbeknownst to her husband. Not knowing her motives, the court will make no finding that she should be punished on account of her conduct as the UCCJEA authorizes; on the other hand, it is obvious that she should neither be rewarded for her actions.
In their briefs in support of persuading their respective states of residency to exercise custody jurisdiction, each party made opposing claims as to why Ms. Downs is here. This court makes no findings on that question, as it is not yet an issue as to which any controversy has been pled. The topic may be relevant at the hearing on primary resident status which this court anticipates must be held forthwith.
Sec. 46b-115r. Jurisdiction declined by reason of conduct; assessment of fees and costs.
(a) Except as otherwise provided in section 46b-115n, if a court of this state has jurisdiction under this chapter because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:
(1) The parents and all persons acting as parents have acquiesced in the exercise of jurisdiction;
(2) A court of the state otherwise having jurisdiction under a provision substantially similar to section 46b-115k, 46b-115l or 46b-115m determines that this state is a more appropriate forum under a statute similar to section 46b-115q; or
(3) No court of any other state would have jurisdiction under the criteria specified in sections 46b-115k to 46b-115m, inclusive.
(b) If a court of this state declines to exercise its jurisdiction pursuant to subsection (a) of this section, it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the unjustifiable conduct, including staying the proceeding until a child custody proceeding is commenced in a court having jurisdiction under a provision substantially similar to section 46b-115k, 46b-115l or 46b-115m.
(c) If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction pursuant to subsection (a) of this section, it shall assess against the party seeking to invoke its jurisdiction reasonable expenses including costs, communication expenses, attorneys fees, investigative fees, expenses for witnesses, travel expenses and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be clearly inappropriate. The court may not assess fees, costs or expenses against the state unless authorized by law.
The commentators to Section 6 of the UCCJEA urge courts to avoid formalistic means of resolving jurisdictional disputes arising between them, and highlight the latitude the Act affords the tribunals involved in order to achieve its purposes:
Because of the havoc wreaked by simultaneous and competitive jurisdiction which has been described in the Prefatory Note, this section seeks to avoid jurisdictional conflict with all feasible means, including novel methods. Courts are expected to take an active part under this section in seeking out information about custody proceedings concerning the same child pending in other states. In a proper case, jurisdiction is yielded to the other state either under this section or under section 7. Both sections must be read together.
Section 7 of the UCCJEA is the provision for determining which of two alternative forums is the more convenient under all the circumstances of the case. In essence, the provisions of Connecticut and California law are substantively identical in their enactment of its provisions.
Embodied in California Fam. Code § 3427, which reads as follows:
(a) A court of this state that has jurisdiction under this part to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court's own motion, or request of another court.
(b) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.
(2) The length of time the child has resided outside this state.
(3) The distance between the court in this state and the court in the state that would assume jurisdiction.
(4) The degree of financial hardship to the parties in litigating in one forum over the other.
(5) Any agreement of the parties as to which state should assume jurisdiction.
(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child.
(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.
(8) The familiarity of the court of each state with the facts and issues in the pending litigation.
(c) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.
(d) A court of this state may decline to exercise its jurisdiction under this part if a child custody determination is incidental to an action for dissolution of marriage or another proceeding while still retaining jurisdiction over the dissolution of marriage or other proceeding.
(e) If it appears to the court that it is clearly an inappropriate forum, the court may require the party who commenced the proceeding to pay, in addition to the costs of the proceeding in this state, necessary travel and other expenses, including attorneys fees, incurred by the other parties or their witnesses. Payment is to be made to the clerk of the court for remittance to the proper party.
And in Conn. Gen. Stat. § 46b-115q, which reads as follows:
(a) A court of this state which has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon a motion of a party, the guardian ad litem for the child or the attorney for the child, the court's own motion or a request of another court.
(b) In determining whether a court of this state is an inconvenient forum and that it is more appropriate for a court of another state to exercise jurisdiction, the court shall allow the parties to submit information and shall consider all relevant factors including: (1) Whether family violence has occurred and is likely to continue in the future and which state could best protect the parties and the child; (2) the length of time the child has resided outside this state; (3) the distance between the court in this state and the court in the state that would assume jurisdiction; (4) the relative financial circumstances of the parties; (5) any agreement of the parties as to which state should assume jurisdiction; (6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child; (7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and (8) the familiarity of the court of each state with the facts and issues in the pending litigation.
(c) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.
(d) A court of this state may decline to exercise its jurisdiction under this act if a child custody determination is incidental to an action for dissolution of marriage, divorce or another proceeding while still retaining jurisdiction over the dissolution of marriage, divorce or other proceeding.
In light of the absence of other criteria by which to determine where Lyndsey's custody should be adjudicated, and in light of the fact that any decision made now may well be revisited often throughout the next seventeen years, the opinion of this court is that the court of the state wherein Lyndsey will reside for the long term ought to be the state which exercises jurisdiction as to her custody. Although Lyndsey now resides with Ms. Downs in Connecticut, mother has not yet been awarded primary residential status by any court. Her claim to that status is no better or worse than that of the child's other parent. What the child's best interests dictate for the long term is an unknown.
This court proposes an initial hearing be held on the issue of which parent is better suited to be designated as primary custodian. It is this court's opinion that the proceedings here should be stayed until that hearing is held in California, unless the California court declines to do so. California is the last state in which this family lived as an intact unit, a fact given weight by the court of Michigan in the case of In re McDonald, 74 Mich.App. 119, 253 N.W.2d 678 (1977). Additionally, Ms. Downs had the option of filing in California before she left. It is foreseeable that she will be at a significant disadvantage if this initial hearing is conducted in California, but the same disadvantage is presumed to afflict Mr. Downs if the initial hearing is held here. Under the UCCJEA, this court notes that the court conducting the hearing has considerable discretion to allow the out-of-state party to submit evidence in the form of deposition transcripts, or via telephonic appearance; thus far, the two courts involved have been liberal in allowing such courtesies and there is no reason to doubt that equivalent means of facilitating the presentation of the out-of-state party's evidence in the future will be allowed.
That hearing need not, however, lead to the final word on this question. If the tribunal which makes the initial determination as to which parent is the better primary custodian decides that question in favor of the parent in the other state, it could well be appropriate that future decisions on custody should be deferred to the state wherein that parent resides. This has two advantages. First, as Lyndsey ages, the balance of her "significant contacts" and the existence of "substantial evidence" on custody issues will tilt in favor of the forum where she lives. Secondly, if the child lives three thousand miles from one parent, but the court of the state wherein that non-custodial parent resides continues to exercise jurisdiction over her custody, the potential for mischief in the form of vexatious post-judgment motions for contempt or modification is amplified. This court believes that these considerations are fair topics for discussion between these two courts and hence is now merely proposing to stay rather than dismiss the case Ms. Downs has filed here until subsequent orders have been entered affecting this child.
Accordingly, this court, on its own motion, hereby stays the custody aspects of these proceedings until further order, in anticipation of a California hearing as to whether mother or father ought to be designated as the parent with whom Lyndsey will primarily reside. Once that court has ruled, the stay may be revised to account for the determinations made there.
This order staying only the custody portion of this case is without prejudice to Mr. Downs filing an appropriate motion to challenge this court's personal jurisdiction over him as to the remaining claims of his wife's complaint.