Revere v. Revere

389 So. 2d 1277
Supreme Court of Louisiana·Decided October 6, 1980·No. 67434·Published·Cited by 46 cases

Opinion

389 So.2d 1277 (1980)

Calvin A. REVERE
v.
Karen Hiller REVERE.

No. 67434.

Supreme Court of Louisiana.

October 6, 1980.
Rehearing Denied November 10, 1980.

*1278 M. J. LeGardeur, Jr., Burns, Farmer & LeGardeur, Brady M. Fitzsimmons, Covington, for defendant-applicant.

Michael T. Stone, Jack A. Blossman, Covington, for plaintiff-respondent.

LEMMON, Justice.

The sole issue at this stage of the child custody contest between the mother and the parents of the deceased father (who had been awarded custody when he obtained a divorce from the mother) is the correctness of the judgment overruling an exception to the jurisdiction of the district court in St. Tammany Parish. The decision turns on the application of R.S. 13:1700 et seq., the Uniform Child Custody Jurisdiction Law, enacted in 1978.

I.

Calvin and Karen Revere married in June, 1974, establishing their matrimonial domicile in St. Tammany Parish where both had lived most of their lives. After one child, Christopher, was born in June, 1975, Karen Revere abandoned her husband and child in August, 1976. Calvin Revere obtained a judgment of separation in St. Tammany Parish later that year and a judgment of divorce in 1977, being awarded child custody in both judgments.

Calvin Revere's parents took care of and helped raise the child from the date of the mother's abandonment until the father was killed on June 18, 1979. The mother had remarried and was living in Texas at the time.

On June 26, 1979 the mother took physical control of the child from the paternal grandparents and obtained an ex parte custody order from the district court in St. Tammany Parish on June 28, 1979. The child has since lived in Texas with the mother and her present husband.

On December 28, 1979 the paternal grandparents filed a rule to change custody in St. Tammany Parish, alleging the mother's unfitness and forfeiture of parental rights. The mother excepted to the court's jurisdiction. The trial court overruled the exception, and the court of appeal denied the mother's application for supervisory writs. We granted certiorari to review the judgments below. 384 So.2d 804.

II.

The Uniform Child Custody Jurisdiction Law was proposed in an effort to have states impose uniform legislative rules on themselves regarding jurisdiction in child custody cases. A custody decree in one state is subject to modification not only by the courts of that state, but also by the courts of another state, since the Full Faith and Credit clause has limited application in *1279 custody cases. New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947). In an age of fluid population trends many cases are presented in which jurisdiction may be concurrent in several states. In order to provide some stability to reasoned custody decrees by discouraging relitigation, to deter custody determinations by physical abduction, to avoid jurisdictional competition and conflicting custody decrees in several states, and primarily to attain the security of home environment necessary for a child's well being, the National Conference of Commissioners proposed the uniform law adopted in Louisiana by Act 513 of 1978. See R.S. 13:1700.[1] At that time numerous other states had adopted the uniform law.

Under the statutory scheme a Louisiana court competent to adjudicate child custody has jurisdiction to render initial decrees or modifications in two principal situations: (1) when Louisiana is the child's home state [R.S. 13:1702A(1)]; and (2) when the child and at least one contestant have a significant connection with Louisiana so that it is in the best interest of the child that Louisiana assume jurisdiction [R.S. 13:1702A(2)].[2] Section 1702 also covers emergency situations because Louisiana is the more appropriate forum.

The "home state" standard provides a jurisdictional concept which is easy to apply without need of further inquiry. Under this rule jurisdiction is automatic if the child lived in Louisiana with a parent or a person acting as a parent for at least six consecutive months at the time the proceeding was commenced, or if the child within six months of commencement is removed from Louisiana or retained elsewhere while the parent or person acting as a parent continues to live in Louisiana.

The theory is that the court of the home state is in the best position for evidence gathering and for exercising continuity of control, so that when the home state has jurisdiction, courts of other states should generally defer to and cooperate with that jurisdiction.

The "significant connection" standard is a more flexible one, based on strong contacts of the child and the contestant with the state in which the proceeding is commenced. This standard provides a "best interest" basis for jurisdiction when Louisiana has a legitimate concern as to custody and has superior access to evidence concerning *1280 the child's care, training, well being and personal relationships.

It is evident that jurisdiction may exist in two different states under the home state and significant connection standards. When this occurs, it is not necessary that the significant connection state defer in every case to the home state.[3] The conflict is avoided by reference to priority of filing (see R.S. 13:1705, which requires a court with jurisdiction under the uniform law to defer to the court of another state with uniform law jurisdiction when the first proceeding was filed in the latter state) and to factors indicating Louisiana is an inconvenient forum (see R.S. 13:1706, which encourages judicial restraint when another state with jurisdiction under the uniform law appears to be in a better position to determine custody).[4]

*1281 III.

In the present case it is a close question whether Louisiana qualified as the child's home state on December 28, 1979, the date the grandparents commenced the present proceeding.

If the child remained in Louisiana through June 28 or later, then Louisiana is clearly the home state and automatically has jurisdiction. The mother's motion for change of custody was signed by her and filed on June 28, 1979, exactly six months before the commencement of this proceeding. Since the pleading does not allege that the child had been removed to Texas, the inference is raised that on June 28 she had not yet removed the child to Texas. (According to the grandparents' motion, the mother took the child from them on June 26.)

The trial of the exception was conducted on February 12, 1980. The parties stipulated many pertinent facts, but disagreed as to the last date that the child lived in St. Tammany Parish, and no evidence was presented to rebut the inference drawn from both parties' pleadings.[5]

The trial judge pretermitted that question and decided the case on the basis of the substantial connection standard of Section 1702A(2). Under this standard the trial judge was clearly correct in exercising jurisdiction.

Both parents lived in St. Tammany Parish for many years, were married there, and established their only matrimonial domicile there. The child was born there and spent his entire life there until being moved to Texas six months before the commencement of this proceeding. The grandparents on both sides live in St. Tammany Parish. The district court in that parish rendered the judgment of divorce and the awards of child custody.

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