March 6, 2013 § Leave a comment

Many lawyers believe that the six-month provision of the UCCJEA fixes jurisdiction in the home state of the child. That’s not always the case, though.

Take, for instance, the case of Clifton v. Shannon, decided by the COA June 26, 2012.

Thomas and Dawn Clifton were divorced in DeSoto County in 1999. Dawn was awarded physical custody of their three-year-old daughter, Ashley, and they were to share joint legal custody. Thomas had reasonable visitation.

In December, 2005, Dawn moved to Colorado and remarried. In 2006, they entered into an agreed judgment adjusting visitation to accommodate the move.

In 2010, Thomas filed a petition in the Chancery Court of DeSoto County seeking modification of custody an an adjudication of contempt.

Dawn objected to jurisdiction, pointing out that Ashley’s home had been in Colorado for the preceding four-and-one-half years, and that there were no significant connections to Mississippi that would justify exercise of jurisdiction.

The chancellor took jurisdiction and awarded Thomas custody, based primarily on Ashley’s preference, and Dawn appealed. She challenged both jurisdiction and the chancellor’s substantive ruling.

On the issue of jurisdiction, here’s what Judge Fair’s opinion stated:

¶7. “Whether a court had jurisdiction under the UCCJEA to hear a child-custody dispute is a question of law, which we review de novo.” Miller v. Mills, 64 So. 3d 1023, 1026 (¶11) (Miss. Ct. App. 2011) (citing Yeager v. Kittrell, 35 So. 3d 1221, 1223 (¶¶12, 14) (Miss. Ct. App. 2009)). However, the factual findings underpinning the jurisdiction question are reviewed under the familiar substantial evidence and abuse of discretion standard. See White v. White, 26 So. 3d 342, 346-48 (¶¶10, 14) (Miss. 2010).

¶8. In Yeager, this Court stated “[a] court issuing an initial determination has continuing jurisdiction over the parties; no other court may modify the decree.” Yeager, 35 So. 3d at 1224 (¶16) (citing Miss. Code Ann. § 93-27-201 (Supp. 2009)). However, even if only one party remains in the state, a second state may modify the order if the issuing court finds that neither the child, nor the child and one parent, have a significant connection with the state, and that substantial evidence is no longer available in the issuing state. Only the issuing state may make this determination. Id. (internal citation omitted).

¶9. There was sufficient evidence that Ashley still maintained a significant connection to Mississippi because her father and extended family reside here. In a recent opinion addressing a chancery court’s jurisdiction over a proceeding for modification of custody, the Mississippi Supreme Court held that since the father had continuously resided in Mississippi:

[I]t was within the chancellor’s discretion to determine that both the child and [the father] had a “significant connection with this state.” Therefore, the chancery court properly has retained continuous, exclusive jurisdiction over [the] matter . . . . White v. White, 26 So. 3d 342, 347-48 (¶14) (Miss. 2010).

¶10. The DeSoto County Chancery Court was the court of original jurisdiction. Nothing in the record suggests that the chancellor erred in retaining jurisdiction. In fact, the Colorado court, where Dawn filed another custody action, had declined jurisdiction on the emergency relief that was requested and did not assume jurisdiction.

¶11. Dawn further contends that Mississippi is an inconvenient forum, as “the overwhelming abundance of substantial evidence and witnesses” with regard to the child’s home life are located in Colorado. She cites Mississippi Code Annotated section 93-27-207, which states in pertinent part:

(1) 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 motion of a party, the court’s own motion, or request of another court.

(2) 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:

(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(b) The length of time the child has resided outside this state;

(c) The distance between the court in this state and the court in the state that would assume jurisdiction;

(d) The relative financial circumstances of the parties;

(e) Any agreement of the parties as to which state should assume jurisdiction;

(f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

(h) The familiarity of the court of each state with the facts and issues in the pending litigation.

(Emphasis added.)

¶12. While Colorado may have been a more convenient forum for Dawn, the chancery court is endowed with the discretion to make that decision. Prior custody proceedings were conducted in Mississippi, and Ashley spent several weeks in Mississippi during the year visiting her father and family. We find that Mississippi was an appropriate forum and that the chancery court properly retained exclusive jurisdiction.

What you can draw from this aspect of the case is that the chancellor will have broad discretion in making a determination whether as the court of original jurisdiction it should take jurisdiction. You would be wise to make a record invoking as many of the factors set out in 93-27-207 as are applicable and favorable to your client’s side of the case. That discretion is not unfettered; there should be some basis in the record to support it. It seems to me that “The nature and location of the evidence required to resolve the pending litigation …” and “The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence …” would be the key factors on which to focus your efforts.

Another lesson: don’t stop your analysis with where the home state of the child is located. That’s only one of a number of factors.

Remember that only the issuing state may determine whether it should continue to exercise jurisdiction. And MCA 93-27-202(1) provides that the original state no longer has continuing, exclusive jurisdiction after both parents have moved from the original state.

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