In the Interest of A.A.

354 P.3d 1205, 51 Kan. App. 2d 794, 2015 Kan. App. LEXIS 54
CourtCourt of Appeals of Kansas
DecidedAugust 14, 2015
DocketNos. 112,133; 112,134; 112,154
StatusPublished
Cited by9 cases

This text of 354 P.3d 1205 (In the Interest of A.A.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of A.A., 354 P.3d 1205, 51 Kan. App. 2d 794, 2015 Kan. App. LEXIS 54 (kanctapp 2015).

Opinion

Leben, J.:

The mother of two children appeals the child-custody orders entered by a Kansas district court on the ground that it lacked subject-matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act. (That act is frequently referred to in court opinions, including this one, by its somewhat unwieldy acronym, die UCCJEA.) The Kansas court entered orders in a child-in-need-of-care proceeding, but a Mississippi court had previously entered custody orders concerning these children in the divorce case between their parents.

We conclude that the Kansas court lacked subject-matter jurisdiction to enter the orders it did, which included a permanent transfer of custody of the children from mother to father. The Mississippi courts had continuing and exclusive jurisdiction in the case, and the Kansas court orders were neither necessary due to an emergency nor the result of a proper forum transfer under the UCCJEA. Accordingly, we reverse the district court’s judgment, direct that the district court vacate its orders, and remand for further proceedings consistent with this opinion.

Factual and Procedural Background

The issues before us require us to determine whether a Kansas court had subject-matter jurisdiction over child-custody matters that were already governed by a Mississippi court’s divorce decree. We therefore will need to set out in some detail the proceedings that took place in each state. In addition, all of the parties recognize that a Kansas court could have authority to take some action in an emergency, so we must also set out die factual circumstances in sufficient detail that we can assess whether any emergency could have provided authority for the Kansas court’s orders.

Mother and Father married in Kansas in June 2002, but they lived diroughout the marriage in Mississippi, where they had two [796]*796children: J.A., a son born in 2004, and A.A., a daughter born in 2006. In January 2007, Mother filed for divorce in Mississippi; she then moved with the children to Kansas.

Mother’s divorce petition claimed that Father had treated her cruelly and inhumanely as a ground for the divorce, but the parties eventually stipulated to a divorce based on irreconcilable differences. The case was pending in the Chancery Court of Marshall County, Mississippi, for nearly 4 years before trial; during that time, several hearings were held regarding custody and visitation matters, and a guardian ad litem was appointed to represent the children’s interests.

The Mississippi court held a 2-day trial in December 2010. The court then entered its “Judgment of Divorce,” granting Mother sole legal custody and physical custody of the children, subject only to supervised visitation with Father one weekend a month. The court designated Father’s parents to supervise those visits.

The Mississippi court also provided a written opinion to accompany its judgment. The court found that spousal “abuse” had occurred during the marriage, noting that Father admitted he had hit Mother at least once and that there had been “many fights” between the parties. The court said that Mother had hit Father at least once too. Of greater concern was “evidence of sexual abuse” against J.A. The court cited testimony from Dr. Fred Steinberg about “extensive evaluations” he had done, leading Dr. Steinberg to conclude that J.A. had been sexually abused and to recommend that Father have only supervised visitations. Another expert, Dr. Frankie Preston, testified that Father was unlikely to have abused J.A., but the court said that “Dr. Preston failed to read Dr. Stein-berg’s report in its entirety and that these deficiencies compromise the reliability of Dr. Preston’s evaluation.” (The court also favorably cited and relied upon Dr. Steinberg’s report when it assessed the skills of Father as a parent.) The court said that “the children’s behavior appeared to improve” while visitations with Father were initially suspended altogether.

In April 2011, a few months after the divorce action had ended, Mother filed a protection-from-abuse action on behalf of the children in Johnson County District Court. She sought an order pre[797]*797venting Father from contacting the children; in support, she alleged that Father had sexually abused the children in 2008 or 2009. The judge who heard her claim concluded that she had not satisfied her burden of proof and dismissed the petition; tire judge also noted that the Mississippi court retained subject-matter jurisdiction over the children under the UCCJEA.

In October 2011, the State of Kansas filed child-in-need-of-care petitions in Johnson County District Court regarding the children. The petitions alleged that the children were in need of care because both parents had reported possible abuse of the children to social-service agencies. The State alleged that it would be against the children’s welfare to remain in their homes. The factual allegations included reports that Father had sexually molested the children and that Mother was telling the children inappropriate things about Father and thereby harming them emotionally. The State’s petition made several specific allegations: (1) that J.A. was acting out by simulating oral sex on other boys at day care, asking why boys had to put their genitals in their fathers’ mouths, and expressing signs of posttraumatic stress disorder; (2) that Mother had reported J.A. ás suicidal; (3) that Mother had reported that A.A. had made allegations of sexual abuse against Father; (4) that A.A. had told a social worker that she did not like visiting Father but did not feel uncomfortable doing so; and (5) that Father had reported to police that the children said Mother would no longer let them see Father because he was a liar.

Mother filed a written response, asking that the State’s petition be dismissed with respect to her. She made several references in her response to Mississippi court proceedings and orders, noted the evaluations done by Dr. Steinberg and Dr. Preston, and quoted the Mississippi court’s statement that Dr. Preston’s report had deficiencies that compromised its conclusions. Mother also provided other details about her claims that Father had abused the children.

The same day Mother filed that response, November 14, 2011, the case first came before the Johnson County District Court for a hearing. A pro tern judge (an attorney appointed to act as a judge in place of the assigned judge) presided. That judge determined that die court had subject-matter jurisdiction over the case, but [798]*798neither the transcript nor the written order tells us what basis, if any, the judge had for that ruling. No mention was made of the UCCJEA. The court set a pretrial conference for January 24,2012.

When the parties appeared for the pretrial conference, the parents indicated that they planned not to contest the State’s allegation that the children were in need of care. The State’s attorney noted that there was a Mississippi court action concerning the family and that the Mississippi court remained involved, though the attorney said he hoped the Mississippi case would be resolved soon so that the Kansas case could “start[] clean.”

At the next hearing, held February 23, 2012, both Mother and Father entered no-contest statements under which they agreed not to contest the State’s factual claim that the children were in need of care, as defined in the Revised Kansas Code for Care of Children. See K.S.A. 2014 Supp.

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Bluebook (online)
354 P.3d 1205, 51 Kan. App. 2d 794, 2015 Kan. App. LEXIS 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-aa-kanctapp-2015.