Dennis v. Dennis

366 N.W.2d 474, 1985 N.D. LEXIS 303

• Court: North Dakota Supreme Court
• Decided: April 17, 1985
• Docket: Civ. 10836
• Status: Published

Opinions

ERICKSTAD, Chief Justice.

Earl Dennis has filed an appeal from an order of the District Court of Burleigh County, dated Septémber 13, 1984, dismissing Earl’s request to modify an original custody decree for lack of subject matter jurisdiction. We reverse and remand for a redetermination of the jurisdictional issue.

During September 1981, the district court entered a decree dissolving Earl and Renae Dennis’ marriage. As part of that decree, Renae was awarded custody of the parties’ minor children, and Earl was granted reasonable visitation rights. At the time the original decree was entered, the parties were aware that Renae intended to move with the children to Iowa, and the decree contained alternative visitation provisions which were to become effective when Renae moved from North Dakota. During October 1981, Renae moved to Iowa with the children, and they have resided there since that time.

During July 1984, Earl filed a request with the district court to modify the visitation provisions of the original decree. The district court denied Earl’s request for modification on the ground that the State of Iowa, and not the State of North Dakota, had jurisdiction to decide the case on its merits.

The sole issue raised by Earl on appeal is whether or not the district court was required to exercise jurisdiction in this case under the provisions of the Federal Parental Kidnapping Prevention Act of 1980 (PKPA). Earl asserts that the PKPA required the district court to assume jurisdiction because Earl is a “contestant”, as defined by the act, who currently resides in North Dakota.

It is well-settled that the PKPA must be considered by a court in resolving a jurisdictional issue involving an interstate custody dispute. See, e.g., Mebert v. Mebert, 111 Misc.2d 500, 444 N.Y.S.2d 834 (1981). When the PKPA was enacted by Congress in 1980, most states had adopted the Uniform Child Custody Jurisdiction Act (UCCJA). One well-written article on the subject, Agopian & Anderson, Legislative Reforms To Reduce Parental Child Abductions, The Journal of Juvenile Law, Vol. 6, p. 17 (1982), describes the circumstances prompting the enactment of the PKPA by Congress:

“At the present time only 47 states have adopted the UCCJA. The non-UCCJA states, however, remained attractive havens for abducting parents seeking a favorable custody hearing, and consequently ‘forum shopping’ remained common and often rewarding. To reduce the re-litigation of child custody decrees in new jurisdictions, the PKPA requires all states, both UCCJA and non-UCCJA, to honor sister state custody decrees which conform with federal jurisdictional criteria.” [Footnotes omitted.]

The provision of the PKPA which is relevant to the district court’s determination of its jurisdictional authority in this case is 28 U.S.C. § 1738A(d):

“(d) The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.”

In support of his position that North Dakota continues to have jurisdiction in this case, Earl asserts that under the PKPA the state entering the original decree continues to have jurisdiction to modify the decree so long as at least one contestant remains a resident-of that state. We disagree. We believe the foregoing provision of the PKPA sets forth two prerequisites for concluding that a state has jurisdiction to modify its original decree.

First, the state in which the original decree was entered must remain the residence of a child or one of the contestants. It is undisputed that Earl is a contestant in this case and that he is a resident of North Dakota. That prerequisite has been met.

Second, the requirement of Subsection (c)(1) of the PKPA must continue to be met:

“(c) ...

“(1) such court has jurisdiction under the law of such State; ...”

Thus, North Dakota, to assume jurisdiction to modify the original decree, must currently meet the jurisdictional requirements found within our codification of the UCCJA under Section 14-14-03(1), N.D.C.C.¹

Having reviewed the jurisdictional requirements under that provision, we conclude that the district court did not err in refusing to exercise jurisdiction under subsection (l)(a) of Section 14-14-03, N.D.C.C., because Iowa, and not North Dakota, is currently the children’s home state where they have resided with their custodial parent for more than three years. That conclusion is supported by a number of courts which have recognized that subsequent to entry of an original custody decree by a child’s home state, another state can become the home state and obtain jurisdiction to modify the original decree. See, Boyd v. Boyd, 653 S.W.2d 732 (Tenn.Ct.App.1983); Serna v. Salazar, 98 N.M. 648, 651 P.2d 1292 (1982); Mebert v. Mebert, 111 Misc.2d 500, 444 N.Y.S.2d 834 (1981); Kumar v. Santa Clara County Superior Court, 124 Cal.App.3d 1003, 177 Cal.Rptr. 763 (1981).

Under subsection (l)(b) of Section 14-14-03, N.D.C.C., a state can assume jurisdiction to modify its original custody decree if the child and his parent or one contestant have a “significant connection” with the state and there is available in the state substantial evidence concerning the child which warrants “in the best interests of the child” that a court of the state assume jurisdiction. Unfortunately, it is impossible to determine from the district court’s order in this case to what extent, if at all, the court considered whether or not it had “significant connection” jurisdiction under subsection (l)(b) of Section 14-14-03, N.D.C.C. That is a question which should be determined by the district court in the first instance after proper hearing.

In accordance with this opinion, we hereby reverse the order of dismissal and remand for a redetermination of the jurisdictional issue.

GIERKE, J., concurs.

1 . "14-14-03. Jurisdiction.

‘‘1. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial decree or modification decree if:

a. This state (1) is the home state of the child at the time of commencement of the proceeding, or (2) had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state;

b. It is in the best interest of the child that a court of this state assume jurisdiction because (1) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (2) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;

c. The child is physically present in this state and (1) the child has been abandoned or (2) it is necessary in an emergency to protect the child because-he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected, dependent, or deprived; or

d. (1) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivision a, b, or c, or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (2) it is in the best interest of the child that this court assume jurisdiction."