Mitchell v. Janik

542 So. 2d 615, 1989 La. App. LEXIS 667, 1989 WL 36912
CourtLouisiana Court of Appeal
DecidedApril 12, 1989
DocketNo. 88-CA-898
StatusPublished
Cited by4 cases

This text of 542 So. 2d 615 (Mitchell v. Janik) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mitchell v. Janik, 542 So. 2d 615, 1989 La. App. LEXIS 667, 1989 WL 36912 (La. Ct. App. 1989).

Opinion

WICKER, Judge.

Michael Joseph Janik appeals an order transferring custody litigation to Georgia. The issue is whether Louisiana or Georgia has jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act, La.R.S. 13:1701 et seq. We affirm, amend in part, and stay the proceedings below.

Matthew was born to Janik and his wife, Winifred Mitchell Janik, both domiciled in Jefferson Parish, on June 19, 1983. They separated physically on May 30, 1984; and Winifred filed suit for a separation on June 28,1984. This pleading and all subsequent pleadings until August 5, 1988 were in the 24th Judicial District Court for the Parish of Jefferson. They obtained a divorce on June 21, 1985. The divorce judgment awarded joint custody of Matthew to his parents and outlined certain procedures regarding sharing of custody, notice, and the like.

On July 24, 1986, Winifred moved to terminate or reduce Michael’s visitation, alleging sexual abuse by Michael. Michael moved to modify the joint custody judgment on September 18, 1986. Four hearings on Winifred’s rule were scheduled pending investigation of the abuse charges by Louisiana authorities. In the meantime, Michael charged Winifred with contempt on March 19, 1987, for her alleged failure to permit visitation.

Winifred and Matthew moved to Georgia on March 26, 1987, without giving the sixty-day notice to Michael required by the custody judgment. She moved to terminate joint custody and modify visitation alleging her move to Georgia. According to Michael, she refused to give him either an address or a telephone number where he could contact Matthew or exercise his visitation, also in violation of the custody judgment. On May 6,1987, Michael filed a rule for custody and contempt.

The accumulated motions, including Winifred’s accusations of sexual abuse, were heard on June 16,1987. The court ordered Michael to have custody of Matthew one week per month, but it also ordered Michael to undergo psychiatric therapy and to sleep on the living room couch during Matthew’s visits. Michael’s contempt rules against Winifred were dismissed.

According to Winifred, Matthew, sometime between this hearing and January of 1988, made additional claims of sexual abuse. She refused to let Michael pick up Matthew in Georgia at his regularly-scheduled visitation. Michael filed a rule for contempt on January 13,1988, and a rule to modify custody on March 17, 1988. Winifred countered in April with a rule to terminate joint custody, for sole custody, and to eliminate or restrict visitation. That rule was scheduled for April 14, 1988, but was continued pending a decision by the trial judge on whether or not to view a videotape made by the Georgia child welfare authorities interviewing Matthew about the alleged sexual abuse.

On August 5, 1988, Winifred filed suit in Georgia to obtain sole custody. This was the first pleading filed outside of Jefferson Parish. She also filed exceptions to the jurisdiction of the court in the pending Jefferson Parish proceedings which were scheduled for August 10, 1989.

The trial judge decided only the legal issue, without hearing any testimony, of which state properly had jurisdiction of this matter. He ruled in favor of Georgia’s jurisdiction on October 3, 1988:

the Court finds that the Declinatory Exception of Lack of Subject Matter Jurisdiction should be maintained and, alternatively, finds that the Motion to Transfer, Forum-Non Conveniens, should be granted, because this Court believes that jurisdiction properly belongs to the Superior Court of Henry County, State of Georgia, or alternatively, that the jurisdiction should be transferred to the Superior Court of Henry County, State of [617]*617Georgia, in that it is a more appropriate forum to litigate the custody issue....

Michael argues that the trial court erred in granting the exception of lack of subject matter jurisdiction, in granting a motion to transfer in the alternative, and in concluding that the Georgia court is a more appropriate forum for the determination of custody.

The Uniform Child Custody Jurisdiction Act’s provisions, adopted by all states and the District of Columbia, were designed to guide the court in making determinations of jurisdiction where more than one state arguably had jurisdiction over the matter.

R.S. 13:1701:

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(5) “Home state” means the state in which the child immediately preceeding the time involved lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period.
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R.S. 13:1702. Jurisdiction

A.A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) 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; or
(2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
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R.S. 13:1705. Simultaneous proceedings in other states

A. A court of this state shall not exercise its jurisdiction under this Part if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this Part, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.
B. Before hearing the petition in a custody proceeding the court shall examine the pleadings and other information supplied by the parties under Section 1708 and shall consult the child custody registry established under Section 1715 concerning the pendency of proceedings with respect to the child in other states. If the court has reason to believe that proceedings may be pending in another state it shall direct an inquiry to the state court administrator or other appropriate official of the other state.
C. If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with Sections 1718 through 1721.

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Cite This Page — Counsel Stack

Bluebook (online)
542 So. 2d 615, 1989 La. App. LEXIS 667, 1989 WL 36912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-janik-lactapp-1989.