Garrett v. Garrett

477 S.E.2d 804, 267 Ga. 356, 96 Fulton County D. Rep. 3618, 1996 Ga. LEXIS 881
CourtSupreme Court of Georgia
DecidedOctober 15, 1996
DocketS96G0925
StatusPublished
Cited by11 cases

This text of 477 S.E.2d 804 (Garrett v. Garrett) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garrett v. Garrett, 477 S.E.2d 804, 267 Ga. 356, 96 Fulton County D. Rep. 3618, 1996 Ga. LEXIS 881 (Ga. 1996).

Opinions

Carley, Justice.

In March 1990, Ms. Cynthia Garrett and Dr. Wayne Garrett were married in Alabama and, in May 1991, their daughter was born in that state. In October 1991, Ms. Garrett and Dr. Garrett separated. The next month, Ms. Garrett and the child moved to Georgia, but Dr. Garrett remained a resident of Alabama. In January 1992, Ms. Garrett filed for divorce in Alabama. Neither Ms. Garrett’s custody of the child nor Dr. Garrett’s visitation rights with the child was a contested issue in the Alabama divorce proceeding. The final divorce decree was entered in April 1993 and was affirmed by the Alabama Court of Civil Appeals in April 1994. In June 1994, Ms. Garrett filed a petition in the Superior Court of Gwinnett County, invoking the “emergency” jurisdiction of that Georgia court for the purpose of seeking a modification of the Alabama divorce decree. According to the petition, Dr. Garrett’s visitation rights should be modified because he had molested the child during one of her visits with him in Alabama. The Georgia court entered an ex parte order temporarily modifying Dr. Garrett’s visitation rights. Thereafter, Dr. Garrett moved the Alabama court to cite Ms. Garrett for her alleged contempt of the visitation provisions of the Alabama divorce decree and, in July 1994, the Alabama court held that it had jurisdiction over the child custody issue. The Georgia court then dismissed Ms. Garrett’s modification action, on the ground that the Alabama court had continuing jurisdiction over the child custody issue. Ms. Garrett’s application for a discretionary appeal was granted by the Court of Appeals and the dismissal of her Georgia modification action was affirmed. According to the Court of Appeals, “Alabama law allows the assertion of continuing jurisdiction made by the Alabama court and . . . the Georgia court did not err in dismissing the Georgia action.” Garrett v. Garrett, 220 Ga. App. 172, 174 (469 SE2d 330) (1996). We granted Ms. Garrett’s application for certiorari in order to determine whether the Court of Appeals correctly held that the Alabama court retained jurisdiction of the custody dispute.

[357]*3571. The Parental Kidnapping Prevention Act (PKPA), 28 USC § 1738A, “limits when a state, which would otherwise have jurisdiction over a child custody dispute, may modify the custody order of another state. . . .” Wilson v. Gouse, 263 Ga. 887, 890 (2) (441 SE2d 57) (1994). Pursuant to section (f) of the PKPA, a court of one state can modify the child custody order of another state’s court only if:

(1) it has jurisdiction to make such a child custody determination; and
(2) the court of the other [sítate no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.

(Emphasis supplied.) Accordingly, a Georgia court cannot modify the original Alabama child custody decree at issue in this case simply because it has the jurisdiction to do so. A Georgia court can modify that original Alabama child custody decree only if it has the jurisdiction to do so and the Alabama court either no longer has jurisdiction or has declined to exercise its jurisdiction.

It is clear that the Georgia court has jurisdiction to modify the original Alabama child custody order, since Georgia is now the “home state” of Ms. Garrett and the child. OCGA § 19-9-43 (a) (1) (A). Therefore, resolution of this case is dependent upon whether the Alabama court has continuing jurisdiction to modify its original child custody order or has declined to exercise its continuing jurisdiction to do so. If the Alabama court has continuing jurisdiction to modify its original child custody order and has not declined to exercise that jurisdiction, then the PKPA limits the exercise of the Georgia court’s jurisdiction to do so.

2. The PKPA provides that the Alabama court will not lose jurisdiction to modify its original child custody order so long as jurisdiction continues under its state’s laws and Alabama remains the state of residence of the child or of either of her parents. Wilson v. Gouse, supra at 890 (2).

By its express terms, § 1738A (d) establishes a two-prong test for determining whether the jurisdiction of a state court which has made a child custody determination consistent with the PKPA is continuing. Failure to satisfy either prong defeats a court’s continuing jurisdiction.

Wilson v. Gouse, supra at 890 (2), fn. 3. See also Ex parte J.R.W., 667 S2d 74, 82 (Ala. 1994) (applying the two-prong test in Alabama). One prong of the PKPA test for continuing jurisdiction clearly has been satisfied here, since it is undisputed that Dr. Garrett remains a resident of Alabama. Insofar as the other prong of the PKPA test is con[358]*358cerned, the Alabama court itself has determined that continuing jurisdiction exists under its state’s laws. However,

such determination does not foreclose an inquiry into the [Alabama] court’s jurisdiction by this court. Section 1738A (f) implicitly imposes upon a court an independent obligation to determine whether the state which made the initial child custody determination continues to have jurisdiction under its own jurisdictional laws. [Cits.]

Wilson v. Gouse, supra at 890-891 (2), fn. 4. Nevertheless, the question of whether the Alabama court has continuing jurisdiction to modify its original decree is a question of Alabama law. Wilson v. Gouse, supra at 891 (3) (Ohio law determines the continuing jurisdiction of the courts of that state over child custody).

Alabama is among those states which have enacted the Uniform Child Custody Jurisdiction Act (UCCJA). Section 30-3-20 et seq. of Ala. Code of 1975. As enacted in Alabama, the UCCJA specifically provides that the courts of that state have modification jurisdiction so long as the child and at least one contestant have a “significant connection” with Alabama and there is “substantial evidence” available in Alabama regarding “the child’s present or future care, protection, training, and personal relationships. . . .” Section 30-3-23 (a) (2) of Ala. Code of 1975. Thus, if Alabama has continuing jurisdiction to modify its original child custody decree under this provision of its UCCJA and has not declined to exercise that jurisdiction, Georgia is limited under the PKPA from exercising its jurisdiction to modify that decree. This is true without regard to whether Georgia also may have a “significant connection” as the current “home state” or whether “substantial evidence” likewise may be available here. OCGA § 19-9-54 (a).

In construing that provision of the UCCJA which is comparable to § 30-3-23 (a) (2) of the Alabama Code of 1975,

[i]t appears that the majority of appellate courts . . . hold that the state in which the initial decree was entered has exclusive continuing jurisdiction to modify the initial decree if: (1) one of the parents continues to reside in the decree state; and (2) the child continues to have some connection with the decree state, such as visitation.

(Emphasis in original.) Greenlaw v. Smith, 869 P2d 1024, 1031 (Wash. 1994). Accordingly,

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Garrett v. Garrett
477 S.E.2d 804 (Supreme Court of Georgia, 1996)

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Bluebook (online)
477 S.E.2d 804, 267 Ga. 356, 96 Fulton County D. Rep. 3618, 1996 Ga. LEXIS 881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garrett-v-garrett-ga-1996.