FIRST DIVISION
DOYLE, C. J.,
PHIPPS, P. J., and BOGGS, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
November 19, 2015
In the Court of Appeals of Georgia
A15A0978. PRABNARONG v. OUDOMHACK.
PHIPPS, Presiding Judge.
In this appeal, we review the question of whether a Georgia trial court properly
exercised emergency jurisdiction when it, in contravention of an order issued by a
court in the state of Washington awarding physical custody of a minor child to the
child’s father, awarded temporary custody of the child to the child’s maternal uncle
after the death of the child’s mother (who had been the primary custodial parent and
had resided with the child in Georgia at the time of her death). Because there was no
basis for the trial court’s exercise of emergency jurisdiction, we reverse.
The pertinent facts of this appeal are undisputed. The mother of the minor
child, V. P.,1 and the child’s father, Sirichai Prabnarong, were divorced by decree
1
V. P. was born on June 12, 2001.
entered in a Washington court on December 20, 2005. Pursuant to a parenting plan
the court incorporated into the divorce decree, the mother was awarded primary
physical custody of V. P., and later moved with V. P. to Georgia. The mother
remarried and had another child. V. P. resided in Georgia for nine years before her
mother died on October 15, 2014; she lived with her mother and stepfather. V.P’s
maternal grandparents and uncle resided nearby in Georgia. After the divorce (and
before the mother’s death), the father had continued to live in Washington, and had
exercised visitation with V. P. during the child’s summer breaks from school.
In November 2014, after V. P.’s mother died, V. P.’s father obtained from the
same Washington court that had issued the divorce decree and parenting plan an order
awarding him primary physical custody of V. P. Days later, V. P.’s maternal uncle
filed in the Superior Court of Gwinnett County a motion for an emergency hearing,
and a petition requesting that the divorce decree and parenting plan that had been
entered in Washington in 2005 be registered in Georgia, and that the Georgia court
modify the parenting plan by ordering that he be awarded joint legal and primary
physical custody of V. P., “with [V. P.’s father] continuing to have summer parenting
time as has been the case since 2005.” The uncle asserted in his petition that V. P.’s
father “has threatened to mistreat [V. P.] by removing her from everything she knows,
2
including her stepfather, younger sister, aunts, uncles, maternal grandparents, friends,
teachers and classmates.” The uncle presented as an exhibit to his petition an
“Affidavit of Election of [V. P.]” wherein then 13-year-old V. P. expressed her desire
to “visit with [her father], but stay in Georgia.” V. P. averred that she elected to live
with her stepfather and uncle on a permanent basis, and she acknowledged that her
uncle was asking the court to order that he be her permanent custodian, and that her
father have visitation rights. V. P. attached to her affidavit two handwritten
documents – one entitled, “Why I want to stay in GA,” and the other entitled, “Why
I don’t want to stay in WA.”
V. P.’s father responded to the uncle’s petition by filing in the Gwinnett action
a pleading entitled, “Registration of Foreign Judgment . . . and Motion to Enforce.”
He sought to register the custody order he had obtained from the Washington court
after V. P.’s mother had died, which order awarded him primary physical custody of
V. P.
After a hearing on the matter, the Gwinnett court entered an order which
provided that the Washington divorce decree “is hereby made the Order of this
Court.” In the same Gwinnett order, the court recognized the November 12, 2014
Washington order that the father had presented for registration, which order awarded
3
primary physical custody of V. P. to her father; and the court stated that “[i]t is
undisputed that upon the Mother’s death, legal custody of the Child is with the
[Father].” Nonetheless, the court found that it had emergency jurisdiction pursuant
to OCGA § 19-9-64 (a) “based upon the Affidavit of Election of [V. P.] and the
handwritten attachments thereto, that [V. P.] has been subjected to or threatened with
mistreatment or abuse.” The court then ordered that V. P. “shall remain in the
physical custody and care of the [uncle] pending transfer of the case to the Juvenile
Court of Gwinnett County and appointment of a guardian to determine the proper
permanent physical custodian of [V. P.].”
Upon the father’s appeal of that order, he enumerates two errors. First, he
contends that “[t]he trial court erred by not enforcing the foreign judgment of child
custody [he had] registered with the Gwinnett County Court.” But, as the Gwinnett
court recognized the Washington order which placed primary custody of V. P. with
her father, the pertinent issue appears to be, as the father contends in his second
enumerated error, whether “[t]he trial court erred by exercising temporary emergency
4
jurisdiction . . . where the circumstances and well-being of the child did not demand
immediate action.”2
“Jurisdiction is a question of law to which appellate courts apply a de novo
standard of review.”3 “Except as otherwise provided in Code Section 19-9-64, a court
of this state may not modify a child custody determination made by a court of another
state,”4 unless certain circumstances exist that are not pertinent here. Pursuant to
OCGA § 19-9-64 (a), “[a] court of this state has temporary emergency jurisdiction [to
modify a child custody determination made by a court of another state] if the child is
present in this state and . . . it is necessary in an emergency to protect the child
because the child . . . is subjected to or threatened with mistreatment or abuse.”
2
See OCGA § 19-9-86 (b) (“A court of this state shall recognize and enforce,
but may not modify, except in accordance with Part 2 of this article, a registered child
custody determination of a court of another state.”).
3
In the Interest of M. M., 315 Ga. App. 673, 674 (1) (727 SE2d 279) (2012)
(footnote omitted); see generally Zinkhan v. Bruce, 305 Ga. App. 510, 511 (699 SE2d
833) (2010) (“Since the superior court’s decision as to whether it had subject matter
jurisdiction to consider the . . . petition for custody was based on an application of
law to undisputed facts, we apply a de novo standard of review.”) (citation and
punctuation omitted).
4
OCGA § 19-9-63.
5
The handwritten documents V. P. attached to her affidavit provided the
following. In the document entitled, “Why I want to stay in GA,” V. P. stated that she
desired to remain in Georgia because she felt safe here, she needed to “be there for”
her younger sister, she loved the school she attended, she made good grades in
school, and she knew everybody at school. V. P. expressed concern that the credits
she was earning for high-school-level courses would not transfer to any school she
would attend in Washington.
In the document entitled, “Why I don’t want to stay in WA,” V. P. stated that
she did not want to reside in Washington because it was not safe there. She stated that
“once when [she] was about 6 or 7 years old,” her father permitted someone she did
not know to supervise her. V. P. stated that on another occasion, her father had left
her at a public swimming pool in the sole care and custody of a cousin; V. P. did not
state the age of that cousin. And finally, V. P. stated that sometimes she feared her
stepbrother because he kept guns and knives, and he smoked in his room and drank.
In Rozier v. Berto,5 this court held that there was no true emergency which
required the Georgia court to exercise emergency jurisdiction pursuant to OCGA §
19-9-64 (a) for the protection of the child, where the child was in the physical custody
5
230 Ga. App. 427 (496 SE2d 544) (1998).
6
of the non-custodial parent who sought the temporary order pursuant to 19-9-64 (a),
and that parent’s version of the facts (that the child was filthy, improperly clothed,
and generally neglected in the custodial parent’s care) did not present an “immediate
danger”6 to the child. In Jackson v. Sanomi,7 the Supreme Court of Georgia, citing
Rozier, held that the non-custodial mother’s allegations that her child feared returning
to the foreign country where the child resided with his father (the custodial parent)
because of ongoing violence there did not meet the requisite criteria pursuant to
OCGA § 19-9-64 (a) and the Georgia trial court was not authorized to exercise
temporary emergency jurisdiction to contravene an order entered by a foreign state
that had awarded physical custody of the child to the father.8
And in Anderson v. Deas,9 where a mother sought to invoke the jurisdiction of
a Georgia court pursuant to OCGA § 19-9-64 (a), this court held that the trial court
was fully authorized to decline to exercise emergency jurisdiction, on the ground that
6
Id. at 429.
7
292 Ga. 888 (742 SE2d 717) (2013).
8
Id. at 890.
9
273 Ga. App. 770 (615 SE2d 859) (2005).
7
the child was in no “immediate danger”10 because she continued to be in the custody
of the parent who sought the temporary order pursuant to OCGA § 19-9-64 (a), and
that “there was no true emergency which required the Georgia court to exercise
jurisdiction for the protection of the child.”11 The mother in Anderson had alleged that
the father had been threatening to kill the mother and harm the child, and that during
a subsequent phone conversation, the father screamed at the child and threatened to
beat the child the next time he saw her.12
In this case, there was no true emergency which required the Georgia court to
exercise jurisdiction for the protection of V. P. The child, who was 13 years old at the
commencement of this (Georgia) custody case, was in the physical custody of her
uncle who was petitioning for a change of custody, and was in no immediate danger
under any version of the facts alleged in her affidavit and attachments, i.e., alleged
neglect by her father when she was six or seven years old and fear of her stepbrother
because he kept weapons and he smoked and drank.13 Nor are we persuaded that, as
10
Id. at 771 (1) (a).
11
Id. (punctuation and footnote omitted).
12
Id. at 770.
13
See generally Jackson, supra; Anderson, supra at 770-771; Rozier, supra.
8
the uncle asserts, certain consequences of V. P. going to live with her father in
Washington – that she would no longer live with her stepfather or half sister, or near
her maternal relatives and friends in Georgia – amounted to an act of mistreatment or
abuse by V. P.’s father and were sufficient to invoke the trial court’s emergency
jurisdiction pursuant to OCGA § 19-9-64 (a).
“The general rule is that the court where the parent with legal custody resides
has the exclusive right to award change of custody.”14 Given that the Georgia court
recognized the Washington order which awarded the father legal custody of V. P. and
that V. P.’s allegations of neglect by her father and fear of her stepbrother arose from
acts that had allegedly occurred and circumstances that had allegedly existed in
Washington, the uncle’s claims should be presented in Washington.15
Notably, the order from which the father appeals runs afoul of another statutory
requirement. If a previous child custody determination exists, as in this case, “the
14
Matthews v. Matthews, 238 Ga. 201 (232 SE2d 76) (1977) (citations
omitted); see Chatman v. Palmer, 328 Ga. App. 222, 224 (1) (761 SE2d 616) (2014);
OCGA § 19-9-23 (a).
15
See generally Rozier, supra at 429 (although father contended that his child
may have been neglected by the mother who was the custodial parent, such neglect,
if it existed, arose and was discovered by the father in the state where the mother
lived with the child, and the father could have presented his claims in that state).
9
temporary order must specify a period that the court considers adequate to allow the
person seeking the temporary order to obtain an order from the court maintaining
continuing jurisdiction over the custody of the child[ ].”16 “The order issued in this
state remains in effect until an order is obtained from the other state within the period
specified or the period expires.”17 Here, the trial court failed to specify in its order any
period of time within which the uncle must obtain an order from the Washington
court.
Judgment reversed. Doyle, C. J., and Boggs, J., concur.
16
Taylor v. Curl, 298 Ga. App. 45 (679 SE2d 80) (2009) (emphasis supplied).
See OCGA § 19-9-64 (c).
17
OCGA § 19-9-64 (c).
10