[Cite as In re M.R.F.-C., 2020-Ohio-4400.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
:
IN RE: :
: Appellate Case No. 28683
M.R.F.-C. & E.J.F.-C. :
: Trial Court Case Nos. 2008-0113
: 2008-0116
:
: (Appeal from Common Pleas
: Court – Juvenile Division)
:
...........
OPINION
Rendered on the 11th day of September, 2020.
...........
MATTHEW C. SORG, Atty. Reg. No. 0062971 & EBONY D. DAVENPORT, Atty. Reg.
No. 0098041, 40 North Main Street, Suite 2700, Dayton, Ohio 45423
Attorneys for Mother
JAMES R. KIRKLAND, Atty. Reg. No. 0009731, 10532 Success Lane, Dayton, Ohio
45458
Attorney for Father
.............
FROELICH, J.
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{¶ 1} Mother appeals from judgments of the Montgomery County Court of
Common Pleas, Juvenile Division, which concluded that it lacked subject matter
jurisdiction over the parties’ child custody cases. Mother claims that the trial court erred
in concluding that it did not have exclusive continuing jurisdiction as the home state, and
that it erred in failing to hold a due process hearing before declining jurisdiction. For the
following reasons, the trial court’s judgments will be affirmed.
I. Procedural History
{¶ 2} Mother and Father, who have never married, have twin sons born in January
2007. The couple separated in October or November 2007, and Father moved to Grand
Rapids, Michigan, where his parents lived. In January 2008, Father filed a petition in the
Montgomery County juvenile court to establish parenting time and child support. The
trial court entered orders establishing visitation and child support amounts for Father.
{¶ 3} In August 2011, Mother filed a motion to terminate child support in the
juvenile court. She indicated that she and Father had been working toward building a
joint family home for their children and had recently purchased a house together in Grand
Rapids. The court granted Mother’s motion. The parties took no further action in the
case for several years.
{¶ 4} On September 23, 2019, Father filed a motion in Montgomery County to
transfer the case to Michigan. Father indicated that Mother had taken the children to
Ohio several times in August and early September, and the last trip had caused the boys
to miss four days of school. Father further stated that, on September 7, Mother “removed
the children from the home and stated that she was taking them to Ohio with her.” Father
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asked that the case be transferred to Michigan, the residence of both parties and where
the boys had lived most of their lives. Father further asked that any filing by Mother be
stayed. The trial court denied the motion “as no case [was] pending” in this court to
transfer.
{¶ 5} Father then filed a motion in the Kent County Circuit Court in Michigan,
asking it to accept jurisdiction. On October 10, Mother filed a motion in Montgomery
County for reallocation of parental rights and responsibilities. The magistrate in Ohio
scheduled a hearing for January 7, 2020.
{¶ 6} On October 22, 2019, the Michigan court granted Father’s motion and
accepted jurisdiction over the parties’ custody matter. The Michigan court’s order
indicated that it had considered Father’s motion to accept jurisdiction and “argument
made by Plaintiff and Defendant’s counsel on October 11, 2019.” The Michigan court
further stated that it had consulted with the magistrate in the Montgomery County juvenile
court pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA),
and both courts agreed that the Kent County court was the more appropriate forum due
to the family’s residing there since 2010.
{¶ 7} A week later, Mother filed a motion in the Montgomery County court, asking
it to retain jurisdiction and for a hearing. Mother argued that the Ohio court had
exclusive, continuing jurisdiction until the Ohio court or the court of another state
determined that a parent or the children did not “presently reside” in Ohio. Mother
asserted that she then lived in Ohio and had for the past month.
{¶ 8} The magistrate denied Mother’s motion. The magistrate found that, when
Mother filed her motion to reallocate parental rights and responsibilities, neither the
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parties nor the children resided in Ohio within the meaning of R.C. 3127.16. The
magistrate relied on Slaughter v. Slaughter, 10th Dist. Franklin No. 11AP-997, 2012-Ohio-
3973, which held that a court’s exclusive continuing jurisdiction under R.C. 3127.16
ceases when the parents and children no longer reside in the original decree state. The
magistrate found that the parties and their sons had resided Michigan since 2010 and
that Mother and the boys were in Ohio for only one month prior to her filing her motion.
The magistrate concluded that it lacked exclusive jurisdiction, that Michigan was the
children’s home state, and that the Ohio court lacked jurisdiction to entertain the child
custody proceeding.
{¶ 9} Mother filed objections, and Father opposed the objections. The trial court
succinctly summarized the parties’ arguments, stating:
* * * [Mother] asserts that because she returned to the State of Ohio
with the children, and the most recent order (from 2008) was issued in Ohio,
Ohio has not lost its exclusive continuing jurisdiction to modify its own order.
[Mother] also argues that the Magistrate erred in his interpretation of
Slaughter v. Slaughter, 2012-Ohio-3973 (10th Dist.). In conclusion,
[Mother] requests the Court to grant her objections and set the matter for a
hearing on her Request for Modification of Parenting Time under the
exclusive, continuing jurisdiction of this Court.
* * * [Father] asserts that Michigan is the child’s “home state”
pursuant to R.C. 3127 as the parties have fully lived in the state of Michigan
for approximately 9 years, having Michigan driver’s licenses, registering to
vote in Michigan, utilizing Michigan school systems, and with Mother owning
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1/2 of the family home in Michigan. Therefore, [Father] argues that
Mother’s move [to] Ohio in September 2019, a month before filing her
motion, does not decide domicile or residency, and none of the parties
“reside” in the state of Ohio within the meaning of R.C. 3127.16.
{¶ 10} On December 20, 2019, the trial court overruled Mother’s objections. The
trial court concluded that, although Ohio was the children’s “home state” when the initial
custody proceedings occurred in 2008, Ohio was no longer the children’s home state, “as
none of the parties or children have resided in this state for a period of 6 months prior to
filing of Mother’s modification action. As such, this Court no longer has exclusive
jurisdiction over this matter.” The trial court noted that some Ohio appellate districts have
held that a court does not lose its “continuing” jurisdiction even if it loses its “exclusive”
jurisdiction. The trial court distinguished those cases, stating that the “dispositive
consideration” appeared to be the lack of another state’s court’s attempting to exercise
jurisdiction. In this case, the Michigan court agreed to accept jurisdiction, and the trial
court concluded that the Michigan court could properly exercise jurisdiction and was the
more appropriate forum.
{¶ 11} Finally, citing State ex rel. Seaton v. Holmes, 100 Ohio St.3d 265, 2003-
Ohio-5897, 798 N.E.2d 375, the trial court noted that the Ohio Supreme Court had held,
when interpreting the previous UCCJA and the Parental Kidnapping Prevention Act, that
a party who leaves the jurisdiction, establishes residency elsewhere, and then attempts
to reestablish residence in the original state fails to satisfy the statutory residency
requirement. The trial court thus held that subject matter jurisdiction was lacking. The
court denied Mother’s motion to retain jurisdiction, dismissed Mother’s motion for
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reallocation of parental rights, and vacated the scheduled hearing.
{¶ 12} Mother appeals, raising two assignments of error, which state:
1. The trial court erred in finding that Ohio lacked continuing jurisdiction as
the “home state.”
2. The trial court erred in failing to hold a due process hearing before
declining jurisdiction as required by the UCCJEA.
{¶ 13} We review de novo review the trial court’s determination regarding the
existence of subject matter jurisdiction, because such a determination is a question of
law. In re A.G.B., 2d Dist. Montgomery No. 28682, 2020-Ohio-3388, ¶ 13; Baker v.
Baker, 2d Dist. Montgomery No. 27850, 2018-Ohio-3065, ¶ 34.
II. Jurisdiction under UCCJEA
{¶ 14} “The purpose of the UCCJEA is to help resolve interstate custody disputes
and to avoid jurisdictional competition with courts of other jurisdictions in custody
matters.” Lafi v. Lafi, 2d Dist. Miami No. 2007 CA 37, 2008-Ohio-1871, ¶ 9, citing State
ex rel. Morenz v. Kerr, 104 Ohio St.3d 148, 2004-Ohio-6208, 818 N.E.2d 1162, ¶ 16. In
Ohio, the Act is codified in R.C. Chapter 3127.
{¶ 15} The UCCJEA replaced the Uniform Child Custody Jurisdiction Act
(“UCCJA”), which was drafted in 1968 and adopted by Ohio in 1977. See Justis v. Justis,
81 Ohio St.3d 312, 314, 691 N.E.2d 264 (1998), citing former R.C. 3109.21 to 3109.37.
As with the later UCCJEA, “[a] purpose of the UCCJA was ‘to avoid jurisdictional
competition and conflict with courts of other jurisdictions’ in custody matters.” (Citation
omitted.) Rosen v. Celebrezze, 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d 420,
¶ 20.
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{¶ 16} “To bolster the effectiveness of the UCCJA,” Congress passed the Parental
Kidnapping Prevention Act (“PKPA”), 28 U.S.C. 1738A, in 1980, which mandated that
states “afford full faith and credit to valid child custody orders of another state court.”
Justis at 315; State ex rel. Morenz at ¶ 16. The Ohio Supreme Court held that when the
Ohio version of the UCCJA conflicted with the PKPA, the PKPA prevailed. State ex rel.
Seaton, 100 Ohio St.3d 265, 2003-Ohio-5897, 798 N.E.2d 375, at ¶ 16.
{¶ 17} Under the UCCJA and the PKPA, a state court that rendered an initial
custody decree had “exclusive jurisdiction over the ongoing custody dispute if that state
has continuing jurisdiction.” (Emphasis sic.) State ex rel. Seaton at ¶ 9, quoting Justis at
syllabus. The PKPA provides that the state court that made the initial child custody or
visitation determination retains jurisdiction as long as that court has jurisdiction under its
state’s laws and “such State remains the residence of the child or of any contestant.”
(Emphasis added.) 28 U.S.C. 1738A(d).
{¶ 18} In State ex rel. Seaton, the Ohio Supreme Court addressed the Ohio court’s
continuing jurisdiction under the UCCJA and PKPA when a family relocated from Ohio
and the father subsequently sought enforcement of a decree in Ohio, where the original
divorce decree had been rendered. In that case, the Seatons resided in Ohio with their
child when divorce proceedings were initiated. In April 2002, a month before the trial
court issued a divorce decree, all of the Seatons relocated to Missouri, with the mother
and child residing separately from the father. In August, the mother registered the Ohio
divorce decree, which included a shared parenting plan, in Missouri. In September, the
father filed a contempt motion in Ohio and sought termination of the shared parenting
plan. The mother moved to dismiss the motion for lack of jurisdiction. The mother also
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filed an original action in Ohio seeking a writ of prohibition to prevent the trial judge from
proceeding on the post-divorce motion.
{¶ 19} The Ohio Supreme Court concluded that the mother was entitled to the writ
of prohibition. The court reasoned:
Ohio was the residence of both parents and the child when they
agreed to terms that were subsequently incorporated into the original
divorce decree. But all of them moved to Missouri. Although [Father] later
moved back to Ohio, he did not thereby confer continuing jurisdiction on the
Ohio court. His status as an Ohio resident did not “continue unchanged”
from the issuance of the divorce decree until the present. In fact, according
to [Mother’s] uncontroverted affidavit, [Father] has expressed his intent to
continue residence in Missouri and doubts the likelihood of further
proceedings in Ohio.
Therefore, under the PKPA, Ohio lacks jurisdiction over [Father’s]
postdecree motions. In other words, “[i]f the party attempting to ‘continue’
jurisdiction in the original court leaves that jurisdiction, establishes
residence elsewhere, and subsequently attempts to reestablish residence
in the original court, then that party does not satisfy the requirement of
subsection (d) that the state or district ‘remains the residence’ of that party.”
State ex rel. Seaton, 100 Ohio St.3d 265, 2003-Ohio-5897, 798 N.E.2d 375, at ¶ 14-15.
{¶ 20} The Seaton Court further concluded that the UCCJA did not require a
different conclusion regarding the Ohio court’s jurisdiction. It noted that, comparably to
the PKPA, the UCCJA required that “a parent or person acting as parent continues to live
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in this state” before an Ohio court could exercise jurisdiction. (Emphasis sic.) Id. at ¶ 16,
quoting former R.C. 3109.22(A)(1). Regardless, to the extent that the UCCJA conflicted
with the PKPA, the PKPA prevailed. Id.
{¶ 21} In 1997, the National Conference of Commissioners on Uniform State Laws
promulgated the UCCJEA to replace the UCCJA. This change was precipitated by a
lack of uniformity among states in the adoption of the UCCJA and inconsistent decisions
about the UCCJA by state courts. See Rosen, 117 Ohio St.3d 241, 2008-Ohio-853, 883
N.E.2d 420, at ¶ 20, citing Uniform Child Custody Jurisdiction and Enforcement Act,
Prefatory Note (1997), 9 Uniform Laws Ann. 649, 650. See also Levy & McCarthy, A
Critique of the Proposed Uniform Child Custody Jurisdiction and Enforcement Act, 15 J.
Amer. Acad. of Matrimonial Lawyers 149 (1998) (“[D]ifferent interpretations of the Act
have resulted in a hodgepodge of state interpretation of the UCCJA which has created
confusion, often worse than before the UCCJA was enacted.”) “The most significant
change[ ] the UCCJEA makes to the UCCJA is giving jurisdictional priority and exclusive
continuing jurisdiction to the home state.” Rosen at ¶ 21.
{¶ 22} R.C. 3127.15(A) sets forth four alternative bases for an Ohio court to make
an initial determination in a child custody proceeding: home-state jurisdiction, significant-
connection jurisdiction, jurisdiction because of declination of jurisdiction, and default
jurisdiction. Id. at ¶ 31, citing R.C. 3127.15(A)(1)-(4); In re A.G.B., 2d Dist. Montgomery
No. 28682, 2020-Ohio-3388, at ¶ 16. “Home state” is defined as
the state in which a child lived with a parent or a person acting as a parent
for at least six consecutive months immediately preceding the
commencement of a child custody proceeding and, if a child is less than six
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months old, the state in which the child lived from birth with any of them. A
period of temporary absence of any of them is counted as part of the six-
month or other period.
R.C. 3127.01(B)(7). Under R.C. 3127.01(B)(5), a child custody action is “commenced”
by the filing of the first pleading in a proceeding.
{¶ 23} It is undisputed that, in 2008, Ohio was the boys’ “home state” under R.C.
3127.01, and the trial court properly made the initial child custody determination. As a
result of that determination, under the UCCJEA, the trial court’s continuing jurisdiction
over the child custody proceeding was exclusive, unless the Ohio court lost its exclusive
jurisdiction.
{¶ 24} An Ohio’s court’s exclusive continuing jurisdiction is governed by R.C.
3127.16, which reads:
Except as otherwise provided in section 3127.18 of the Revised Code
[emergency jurisdiction], a court of this state that has made a child custody
determination consistent with section 3127.15 or 3127.17 of the Revised
Code has exclusive, continuing jurisdiction over the determination until the
court or a court of another state determines that the child, the child’s
parents, and any person acting as a parent do not presently reside in this
state.
(Emphasis added.) In enacting R.C. 3217.16, Ohio did not adopt Section 202 of the
UCCJEA in its entirety. Rather, R.C. 3127.16 incorporated only subsection (a)(2) of that
section.1
1 Section 202(a)(1) provided: “Except as otherwise provided in Section 204, a court of
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{¶ 25} The comments to the UCCJEA discussed the purpose of Section 202:
This is a new section addressing continuing jurisdiction. Continuing
jurisdiction was not specifically addressed in the UCCJA. Its absence
caused considerable confusion, particularly because the PKPA, § 1738(d),
requires other States to give Full Faith and Credit to custody determinations
made by the original decree State pursuant to the decree State’s continuing
jurisdiction so long as that State has jurisdiction under its own law and
remains the residence of the child or any contestant.
***
2. Continuing jurisdiction is lost when the child, the child’s parents, and any
person acting as a parent no longer reside in the original decree State. The
exact language of subparagraph (a)(2) was the subject of considerable
debate.2 Ultimately the Conference settled on the phrase that “a court of
this State or a court of another State determines that the child, the child’s
parents, and any person acting as a parent do not presently reside in this
this State which has made a child-custody determination consistent with Section 201 or
203 has exclusive, continuing jurisdiction over the determination until:
(1) a court of this State determines that neither the child, nor the child and one parent,
nor the child and a person acting as a parent have a significant connection with this State
and that substantial evidence is no longer available in this State concerning the child’s
care, protection, training, and personal relationships[.]”
2 Section 202(a)(2) of the draft originally presented at the summer 1997 meeting of the
National Conference of Commissioners on Uniform State Laws mimicked the language
of the PKPA. It stated that the state court that made the original custody determination
would have “exclusive, continuing jurisdiction over the determination until * * * a court of
this State or a court of another State determines that this State is no longer the residence
of the child, a parent, or any person acting as a parent.”
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State” to determine when the exclusive, continuing jurisdiction of a State
ended. The phrase is meant to be identical in meaning to the language of
the PKPA which provides that full faith and credit is to be given to custody
determinations made by a State in the exercise of its continuing jurisdiction
when that “State remains the residence of ... .” The phrase is also the
equivalent of the language “continues to reside” which occurs in UIFSA
[Uniform Interstate Family Support Act] § 205(a)(1) to determine the
exclusive, continuing jurisdiction of the State that made a support order.
The phrase “remains the residence of” in the PKPA has been the subject of
conflicting case law. It is the intention of this Act that paragraph (a)(2) of
this section means that the named persons no longer continue to actually
live within the State. Thus, unless a modification proceeding has been
commenced, when the child, the parents, and all persons acting as parents
physically leave the State to live elsewhere, the exclusive, continuing
jurisdiction ceases.
The phrase “do not presently reside” is not used in the sense of a
technical domicile. The fact that the original determination State still
considers one parent a domiciliary does not prevent it from losing exclusive,
continuing jurisdiction after the child, the parents, and all persons acting as
parents have moved from the State.
***
Exclusive, continuing jurisdiction is not reestablished if, after the
child, the parents, and all persons acting as parents leave the State, the
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non-custodial parent returns. As subsection (b) provides, once a State has
lost exclusive, continuing jurisdiction, it can modify its own determination
only if it has jurisdiction under the standards of Section 201 [Initial child-
custody determination]. If another State acquires exclusive continuing
jurisdiction under this section, then its orders cannot be modified even if this
State has once again become the home State of the child.
(Footnote added.) UCCJEA, Comment to Section 202.
{¶ 26} As stated above, the trial court concluded that, although Ohio was the
children’s “home state” when the initial custody proceedings occurred in 2008, Ohio was
no longer the children’s home state due to the family’s relocation to Michigan and residing
there as a family for nine years. The court further concluded, citing State ex rel. Seaton,
100 Ohio St.3d 265, 2003-Ohio-5897, 798 N.E.2d 375, that Mother did not satisfy Ohio’s
residency requirement when she attempted to reestablish residence in Ohio shortly
before filing her motion.
{¶ 27} Mother claims that “the duration of the child’s out of state residency during
the pendency of a child custody action is irrelevant to jurisdictional analysis.” She bases
her argument on State ex rel. M.L. v. O’Malley, 144 Ohio St.3d 553, 2015-Ohio-4855, 45
N.E.3d 971, and C.H. v. O'Malley, 158 Ohio St.3d 107, 2019-Ohio-4382, 140 N.E.3d 589.
{¶ 28} In State ex rel. M.L., the child was born in Ohio to unmarried parents, and
the father filed an application to determine custody in Ohio. The mother was never
served, however, and she moved with the child to New Jersey. The Ohio court
nevertheless granted custody to the father, and in December 2011, the child was placed
in the father’s custody pursuant to the order. The order was reversed on appeal due to
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lack of service, but the case was not dismissed. It appears that the child was returned
to the mother. In July 2012, the father filed a new application under a new case number,
and the mother sought dismissal due to a pending action in New Jersey. The Ohio
juvenile court denied the mother’s motion. The mother then sought a writ of prohibition
on the ground that another state, New Jersey, was the child’s home state under the
UCCJEA. The next day, the New Jersey court determined that Ohio was the home state.
{¶ 29} The Supreme Court held that the Ohio court did not patently and
unambiguously lack jurisdiction over the child custody proceeding. The court found that
Ohio was the child’s home state when the father filed his first action, which had not been
dismissed. Because Ohio appeared to have been the home state of the child on the date
of the commencement of the proceeding, the Ohio court had jurisdiction under R.C.
3127.15(A)(1) to determine custody. The supreme court further noted that the New
Jersey court had declined jurisdiction and determined that Ohio was the more appropriate
forum, which provided a basis for jurisdiction under R.C. 3127.15(A)(3).
{¶ 30} The Ohio Supreme Court distinguished State ex rel. M.L. in C.H. v.
O'Malley. In C.H., the child was born in 2005 in Arizona and was adopted by her
maternal grandmother, C.H., in 2017, also in Arizona. In June 2017, the child’s biological
mother drove him to the Ohio home of the man who claimed to be the biological father.
Two months later, in August, the father filed an application to determine custody in
Cuyahoga County, Ohio. He also filed a motion for emergency temporary custody, which
was granted. The father did not inform the court that C.H. had adopted the child. C.H.
later informed the court of the adoption order and challenged the Ohio court’s jurisdiction.
After the trial court rejected C.H.’s jurisdictional challenge, C.H. brought an action for a
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writ of prohibition. On September 23, 2018, the father voluntarily dismissed without
prejudice his application to determine custody, and six minutes later, he filed a new
application under the same case number.
{¶ 31} Addressing C.H.’s request for a writ of prohibition, the Ohio Supreme Court
initially concluded that the Ohio court did not have home state jurisdiction when the father
filed his August 2017 application. However, applying the voluntary dismissal rule under
Civ.R. 41(A)(1)(a), the supreme court held that father’s first petition was a legal nullity,
and therefore Ohio was the child’s home state when the September 2018 petition was
filed. The supreme court distinguished State ex. rel. M.L., stating:
Our decision to deny a writ of prohibition in M.L. was squarely based on the
fact that the first application was never dismissed. By contrast, [father] did
dismiss his first application under Civ.R. 41(A)(1)(a), effectively making the
original filing a nullity. C.H. has cited no statutory authority for the
proposition that when more than one child-custody action is filed, the
commencement date of the first child-custody action continues to govern
the home-state-jurisdiction analysis after that application has been
voluntarily dismissed and a second application filed.
C.H. at ¶ 25.
{¶ 32} Mother argues that, like in State ex rel. M.L., the child custody proceeding
was initiated in 2008 in Ohio, and the Ohio court continued to have exclusive jurisdiction
because no other custody motion or action was initiated prior to 2019. Mother states that
the Ohio court’s denial of Father’s motion to transfer preserved Ohio’s jurisdiction over
the matter. Mother asserts, citing C.H., that the family’s relocation during the pendency
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of the action in Ohio was “irrelevant” and, because Mother and the children resided in
Ohio when Mother filed her October 2019 motion, the Montgomery County juvenile court
continued to have exclusive jurisdiction.
{¶ 33} We disagree that State ex rel. M.L. and C.H. are dispositive of the issue
before us. Significantly, both cases concerned whether the Ohio court had jurisdiction
to make an initial child custody determination under R.C. 3217.15. The central issue
was whether Ohio was the home state when the proceeding was filed in Ohio. In State
ex rel. M.L., the Ohio court had jurisdiction over the proceeding because Ohio was the
home state when the first proceeding, which was filed in Ohio and never dismissed, was
filed. In contrast, in C.H., the first Ohio proceeding was disregarded due to the voluntary
dismissal, and the Ohio court had jurisdiction over the refiled proceeding because it was
the home state when that proceeding was filed. Neither case concerned circumstances
where the child, the child’s parents, and any person acting as a parent no longer resided
in Ohio, nor did either case address the exclusive continuing jurisdiction of the court under
R.C. 3217.16.
{¶ 34} We agree with Mother that home-state jurisdiction is determined when an
action is “commenced,” and that the parties’ relocation to another state during the
pendency of the proceeding does not eliminate that state’s jurisdiction to resolve the
pending custody matter. See C.H. at ¶ 13; Mulatu v. Girsha, 12th Dist. Clermont No.
CA2011-07-051, 2011-Ohio-6226, ¶ 44. It does not follow, however, that the parties’
relocation after the child custody determination has been made is irrelevant to the court’s
exclusive continuing jurisdiction.
{¶ 35} Rather, we conclude that the trial court’s consideration of the family’s long-
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term residence in Michigan was appropriate in determining whether the trial court retained
exclusive continuing jurisdiction over the cases before us. Although the language of R.C.
3127.16 is not identical to the language in the PKPA, we interpret R.C. 3127.16 to mean
that an Ohio court loses its exclusive jurisdiction once the parents and child no longer
“presently reside” in Ohio.
{¶ 36} In this case, the initial custody proceeding was commenced in Ohio in 2008.
The trial court made a child custody determination, and no further action was taken by
the parties between the 2011 motion to terminate child support and the 2019 motions.
Mother, Father, and their sons moved to Michigan, and Mother and Father lived together
and jointly raised their children in Michigan for nearly a decade. The trial court properly
found that neither the parents nor the children resided in Ohio during that time and, as a
result, the Montgomery County juvenile court lost its exclusive continuing jurisdiction.
We need not reach a different conclusion simply because the trial court made this
determination after Mother and the children returned to Ohio and Mother sought a
modification of the original judgment.
{¶ 37} Moreover, the trial court did not “preserv[e] Ohio’s jurisdiction” when it
denied Father’s motion to transfer the cases to Michigan, as Mother suggests. Rather,
the trial court denied the motions because no case was pending in the court to transfer.
Upon the filing of Mother’s 2019 motion to retain jurisdiction, the trial court properly
considered anew whether it had exclusive continuing jurisdiction over Mother’s motion
seeking a modification of the Ohio child custody order.
{¶ 38} Mother’s first assignment of error is overruled.
{¶ 39} Mother further claims that the trial court nevertheless had continuing
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jurisdiction and erred in determining that Michigan was the more appropriate forum
without holding a hearing and considering statutory factors.
{¶ 40} R.C. 3127.21 permits a court with jurisdiction under Ohio’s UCCJEA to
decline jurisdiction if it determines that it is an inconvenient forum under the
circumstances and that a court of another state is a more convenient forum. Before
making such a determination, the court must allow the parties to “submit information” and
must consider all relevant factors, including:
(1) Whether domestic violence has occurred and is likely to continue in the
future and which state could best protect the parties and the child;
(2) The length of time the child has resided outside this state;
(3) The distance between the court in this state and the court in the state
that would assume jurisdiction;
(4) The relative financial circumstances of the parties;
(5) Any agreement of the parties as to which state should assume
jurisdiction;
(6) The nature and location of the evidence required to resolve the pending
litigation, including the testimony of the child;
(7) The ability of the court of each state to decide the issue expeditiously
and the procedures necessary to present the evidence;
(8) The familiarity of the court of each state with the facts and issues in the
pending litigation.
R.C. 3127.21(B).
{¶ 41} We note that the UCCJEA “is premised on the assumption that sister state
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courts will communicate with one another.” In re M.M.V., 2020 COA 94, 2020 WL
3088847, ¶ 33 (Colo. App.), citing Saavedra v. Schmidt, 96 S.W.3d 533, 547-48
(Tex.App.2002). See R.C. 3217.09.
Inter-court communication facilitates an understanding between sister
states regarding whether the issuing state has lost jurisdiction * * * or
declined to exercise jurisdiction in favor of a more convenient forum * * *.
Such communication alerts the issuing state to a potential loss of exclusive
continuing jurisdiction, based on residence, before the new state assumes
jurisdiction to modify the issuing state’s child custody order. It also alerts
the new state to any pending actions in the issuing state and helps to
develop a factual record in the matter of jurisdiction.
Brandt v. Brandt, 2012 CO 3, 268 P.3d 406, ¶ 34.
{¶ 42} We find no fault with the trial court’s failure to employ the analysis set forth
in R.C. 3127.21 under the circumstances here. The record reflects not only that Ohio no
longer had exclusive jurisdiction, but that Michigan was the children’s home state in
October 2019. The record further demonstrates that the Ohio and Michigan courts
communicated regarding jurisdiction and that the Michigan court had accepted jurisdiction
over the parties’ custody proceeding following that conversation. Even assuming that
the trial court could have exercised continuing jurisdiction over its initial child custody
order, the UCCJEA prioritizes “home state” jurisdiction, which was Michigan in October
2019. Under these facts, the trial court did not err in declining jurisdiction and in finding
that Michigan was the more appropriate forum to address the parties’ child custody matter
and that it (the Ohio court) lacked exclusive subject matter jurisdiction.
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{¶ 43} Mother’s second assignment of error is overruled.
III. Conclusion
{¶ 44} The trial court’s judgment will be affirmed.
.............
TUCKER, P.J. and HALL, J., concur.
Copies sent to:
Matthew C. Sorg
Ebony D. Davenport
James R. Kirkland
Hon. Helen Wallace
In re M.R.F.-C.
Combined Opinion