[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 167
[1] THE TRIAL COURT'S ORDER DENYING THE WRIT OF HABEAS CORPUS AND AWARDING CUSTODY IS VACATED AND THE TRIAL COURT IS ORDERED TO STAY ALL PROCEEDINGS FOR THIS CHILD'S CUSTODY PENDING THE TEXAS LITIGATION'S FINALITY
[2] The dispositive issue for review is whether the trial court erred by exercising jurisdiction under the Uniform Child Custody Jurisdiction Act [UCCJA or the Act]1 when an initial custodyaction pending in Texas had not been stayed. We answer in the affirmative.
[4] A. The Factual Background2
[5] The parties are the mother of a twelve-year-old child3 and his Texas custodians [the custodians or the Roberts].4 The mother and child went to live with the *Page 168 Roberts in Texas when the child was about two years old. When the mother returned to Oklahoma six months later, she left the child in the Texas couple's care. Since then the custodians have been providing the child with guidance, life's necessities and parental comfort, except for short periods when he resided with his mother.5[6] B. The Texas Proceedings
[7] During a Christmas visit to Texas in 1989, the mother told the custodians this would be the boy's last year with them. The following March the custodians commenced conservatorship proceedings in Texas to gain the child's custody.6 Before the mother was served with Texas process, she went to the custodians' home, picked up the child as he stepped from the school bus and brought him to Oklahoma.7 The following day the custodians sought and were granted in the Texas action an ex parte order that the child be found and placed in the county sheriff's custody.[8] C. The Oklahoma Proceedings
[9] The custodians' Oklahoma quest for custody was by habeas corpus brought two days later in the district court. Their claim was based on the Texas ex parte order for writ of attachment and temporary custody of the child. They sought the child's return to Texas where litigation over his custody could continue. The same day the habeas corpus application was filed, the mother petitioned the district court to assume jurisdiction and grant her the child's exclusive custody. The two Oklahoma cases were consolidated. After a phone conversation with the Texas judge, the Oklahoma court concluded that the latter (a) deferred the jurisdictional decision to him and (b) agreed to abide by his decision. The Texas court's agreement was not reduced to writingnor did the Texas court stay its proceedings.8 In short, the *Page 169 Oklahoma homa court merely assumed Texas was not exercising jurisdiction. After an evidentiary hearing the Oklahoma court held that (1) the custodians lacked standing to bring an application for habeas corpus, (2) Oklahoma has home-state jurisdiction because it is the mother's domicile, and (3) custody should remain with the child's mother and father.9[10] D. The Subsequent Proceedings
[11] After the Oklahoma court decided the consolidated cases, and while this appeal was pending,10 the Texas court awarded the child's custody to the custodians.11 That court acknowledged the Oklahoma judge's phone call but denied that it agreed to relinquish jurisdiction of the cause.12 We retained thisappeal to set guidelines for Oklahoma courts to follow when aninitial UCCJA custody action is pending in another state that isexercising home-state jurisdiction.13[12] JURISDICTION UNDER THE UNIFORM CHILD CUSTODY JURISDICTION ACT AND THE FEDERAL PARENTAL KIDNAPPING PREVENTION ACT
[13] A. The Appeal
[14] On appeal the custodians urge that the Oklahoma trial judge erred by refusing to recognize the Texas court's "vested jurisdiction" under the UCCJA. They argue that 10 O.S.Supp. 1982 § 1608[10-1608](A)14 bars an Oklahoma court from exercisingjurisdiction if another custody proceeding was pending in a sister state's court when the petition was filed. The sister state must be exercising jurisdiction substantially in conformity with the UCCJA.15 According to the custodians, the Oklahoma court's *Page 170 exercise of jurisdiction violates the Parental Kidnapping Prevention Act [PKPA]16 as well as state law. They contend the PKPA and UCCJA proscribe an Oklahoma court from proceeding under these circumstances absent a Texas-court stay of its proceedings.[15] The mother urges (1) the custodians lacked standing to petition the Oklahoma court for habeas corpus, (2) the ex parte order for temporary custody could not be enforced because the mother had not been afforded due process and (3) Texas lacks subject matter jurisdiction under the UCCJA.17 She argues her own domicile in Oklahoma gives this state exclusive jurisdiction to determine the child's custody. According to the mother, events that happened after the trial estop the custodians from claiming relief from this court.18
[16] We agree with the custodians that both the UCCJA's § 1608(A)19 and the PKPA's § 1738A(g)20 bar the Oklahoma trial court from exercising jurisdiction under the circumstances present here.
[17] B. Application of the Acts.
[18] Oklahoma's UCCJA governs initial custody proceedings.21 An Oklahoma court may enter a custody decree if one of four alternative jurisdictional prerequisites22 are present: (1) if Oklahoma is the child's home state (or recently has been and a parent continues to live in the state), (2) if it is in the child's best interest for the state to assume jurisdiction because the child and his parents or the child and a contestant have a significant connection to the state and substantial evidence is available here concerning the child's present or future *Page 171 care, (3) if the child has no home state and it would be in the child's best interest for the state to assume jurisdiction, or (4) if the child is present in the state and has been abandoned or abused.23[19] Oklahoma custody proceedings must be consistent with the PKPA.24 Otherwise this state's custody orders would not be enforceable in other states.25 The PKPA provides that although a state may meet one or more of the four prerequisites that we have described, that state may not proceed if anotherstate is exercising jurisdiction consistently with the federal *Page 172 act's provisions.26 A similar prohibition in the UCCJAproscribes an Oklahoma court's cognizance if a custody action ispending in another state exercising jurisdiction "substantiallyin conformity" with the Act.27 These mechanical "first-in-time" rules are designed to prevent jurisdictional squabbles by limiting the court's jurisdiction to act in certain custody matters.28
[20] In G.S. v. Ewing29 we recently considered an Oklahoma court's continuing jurisdiction under the UCCJA to modify a child custody decree. We noted there that under the UCCJA initial and modification cognizance differs. Initial jurisdiction ordinarily resides in the state with the closest connections to the child and to information about his present and future well-being.30 We recognized in Ewing that § 1608(A) limitsan Oklahoma court's authority to hear a custody dispute if thereis a suit pending in another state's court.31
[21] The mother urges us to focus our jurisdictional inquiry onenforceability of the temporary ex parte order. She contends the Texas court was not exercising jurisdiction substantially inconformity with the Act when she filed the Oklahoma litigationbecause the Texas order was issued ex parte and was temporary. She urges she had no opportunity to appear and respond in Texas.
[22] A review of extant jurisprudence from other states reveals that not all courts agree on the meaning of the phrase, "exercising jurisdiction consistently with the federal act" or "exercising jurisdiction substantially in conformity with the UCCJA." Some courts have held that unless proper notice has been given under the acts, no action is pending.32 Others recognize that subject matter jurisdiction is not lost because the notice requirements have not yet been satisfied.33
[23] Before making a decree under the act, a court shall give the contestants reasonable notice and opportunity to be heard. 10 O.S. 1981 § 1606[10-1606];34 28 U.S.C. § 1738A(e).35 Neither the § 1738A(g) nor *Page 173 the § 1608(A) jurisdictional bars require that thefirst state shall have issued an enforceable order before thesecond state is barred from proceeding.36 The better rule requires deference to Texas if the action was pending under Texas law when the Oklahoma proceedings were filed. Recognition of priority based upon the commencement of out-of-state forum litigation is consistent with prior Oklahoma cases and the purposes of the pertinent custody acts.37 This principleprevents two or more states from exercising concurrentjurisdiction38 and discourages an interstate race for amore favorable forum.
[24] An Oklahoma court must, when it learns an initial custody proceeding is pending in another state, make a critical two-part inquiry: (1) Was another state exercising home-state jurisdictionsubstantially in conformity with the UCCJA when the Oklahoma petition was filed? and (2) If so, did the other court stay itslitigation?
[25] The answer to whether the Texas suit was pending lies in that state's Family Code at § 11.0739 and in its rules of civil procedure. The cited statute provides that a suit affecting the parent-child relationship shall be commenced by filing apetition. According to the Texas Rules of Civil Procedure, a civil suit in the district or county court shall be commenced bya petition filed in the clerk's office.40 Clearly, the petition's filing — rather than service of process — triggered the Texas litigation.41
[26] The Texas litigation was at its earliest stage when the Oklahoma actions were filed; hence the inquiry to determine whether the former proceeding substantially conformed to the Texas UCCJA must focus on its pleadings. Would the custodians' allegations — taken as true for purposes of this determination — give Texas home-state jurisdiction under the UCCJA?
[27] "Home state" means the state where the child was living with his parents, a parent, or a person acting as a parent, for at least six consecutive months immediately preceding the time involved.42 A *Page 174 "person acting as a parent" is one who has physical custody of a child and claims a right to custody.43 Under Texas law a person who has possession and control of a child for at least six months immediately preceding the filing of the petition may bring a claim for custody.44 The mother contends the Texas court lacked home-state jurisdiction because the custodians did not have physical custody of the child at thetime the Oklahoma litigation was filed. The critical time for testing whether the custodians were "acting as parents" and "claim a right to custody" was the point in time when the Texaslitigation was filed. The custodians allege that the mother voluntarily placed the child into their actual possession, care and control in September 1981 where he has remained — except for four very brief periods. In assessing whether the Texas court is exercising jurisdiction substantially in conformity with the UCCJA, the Oklahoma court may not test the truth of the custodians' allegations.45 Rather the Oklahoma court must stay its own proceedings if the Texas litigation appears to bein substantial UCCJA conformity.
[28] The Oklahoma court attempted to avoid a jurisdictional dispute by conferring with the Texas judge, but it did not secure forthe record an order staying the foreign litigation. Neither didit file in the custody registry a communication from the otherstate informing this state of a finding that Oklahoma is the moreappropriate forum, as prescribed by 10 O.S. 1981 § 1609[10-1609](I).46 The Oklahoma court has no power to stay a Texas action;47 discretion to decline jurisdiction in favor *Page 175 of amore appropriate forum rests with the Texas court.48 Reliance solely upon oral communications between judges can cause confusion. The better rule of practice and the one we adopt today is that, without written notification that the sister-state court yields jurisdiction — filed in the cause — Oklahoma must defer to the pending first-commenced forum litigation. 10 O.S.Supp. 1982 § 1608[10-1608](A);49 28 U.S.C.A. § 1738A(g).50
[29] The trial court's order denying the writ of habeas corpus and awarding custody of the child, C.A.D., to his mother and father is vacated. The trial court is ordered to stay all Oklahoma battles for his custody pending finality of the Texas litigation. Yet to be decided is whether any Texas orders for this child's custody are enforceable in Oklahoma within the parameters of 28 U.S.C.A. § 1738A.51
[30] LAVENDER, HARGRAVE, KAUGER, SUMMERS and WATT, JJ., concur.
[31] SIMMS, J., concurs in part and dissents in part.
[32] HODGES, V.C.J., and ALMA WILSON, J., dissent.
The child's father [D.A.D.] is not a party to the Oklahoma litigation, but the Oklahoma court awarded the child's custody to both D.A.D. and the mother.
The following schedule identifies the location and dates of the child's school attendance until the custody action was filed.
Activity Grade Entered Left
OK: attended in Norman K 9/85 5/86 OK: entered and left 1 9/86 12/2/86 TX: entered 1 12/10/86 5/87 TX: remained 2 8/87 5/88 OK: entered and left Oklahoma City 3 9/88 11/88 TX: entered and finished 3 11/88 5/89 OK: entered and left Oklahoma City 4 9/89 10/89 TX: entered and left Texas 4 10/89 3/13/90
"The Court, having on the 21st day of March, 1990 communicated, in the presence of all counsel, with the Honorable Robert Stem, District Judge of the 82nd Judicial District Court of Falls County, Texas, pursuant to this Court's being aware of action No. 30,159 filed on the 2nd day of March, 1990, said action being styled "ORIGINAL SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP; PETITION FOR ORDER OF SOLE MANAGING CONSERVATORSHIP," with corresponding temporary order and Writ of Attachment issued ex parte by the Texas Court on March 14, 1990, which actions involved the identical parties as those herein, and the minor child, [C.A.D.], date of birth April 28, 1980 (hereinafter `child'); and pursuant to said phone communications, both Courts agreeing that the Honorable David Harbour should make a finding as to which Court should have jurisdiction in all matters affecting the said minor child, by which decision the Texas Court would abide and, further, that the Honorable David Harbour should determine whether a Writ of Habeas Corpus should lie. . . ."
An appellate court can take judicial notice of its own records in litigation interconnected with an appeal before it. SeeReeves v. Agee, Okla., 769 P.2d 745, 756, n. 40 (1989); Timmonsv. Royal Globe Ins. Co., Okla., 713 P.2d 589, 592 n. 10 (1986);Chandler v. Denton, 741 P.2d 855, 861-862 (1987).
For a discussion of other subsequent proceedings, see infra note 28.
"* * * The Court advised the parties through their counsel, that a telephone conversation did occur between the Honorable Robert Stem, District Judge of the 82nd Judicial District Court of Falls County, Texas, and the Honorable David M. Harbour, Special Judge of the District Court in Cause No. FD-90-1831 in the District Court of Oklahoma County, Oklahoma, but that no agreement was reached between the Courts that the Oklahoma Court would make any determinations regarding jurisdiction for the Texas Court. In this regard, the Court informed the parties that the 82nd Judicial District Court of Falls County, Texas, made no such agreement, did not authorize the Oklahoma Court to so rule, does not have the authority to abdicate its jurisdiction in any event, and does not agree to abide by any decision thereof. * * *"
Later the Texas court held a hearing on the merits of the custody dispute, but the mother defaulted.
"A. A court of this state shall not exercise its jurisdiction under this act 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 act, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons." [Emphasis added.]
"(g). A court of a State shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination." [Emphasis supplied.]
"The provisions of this act shall apply to all custody proceedings brought within this state, whether as an initial proceeding or modification, and regardless of the absence of jurisdictional dispute." [Emphasis supplied.]
The uniform act was developed to assure that states whoseinterest in the child was most substantial would receivedeference from other states. Coombs, supra at 719-720. Some states failed to enact the UCCJA and others varied its provisions. Note, Thompson v. Thompson: The JurisdictionalDilemma of Child Custody Cases under the Parental KidnappingPrevention Act, 16 Pepperdine L.Rev. 409, 415-416 (1989). Congress answered the problem by passing the PKPA, 28 U.S.C.A. § 1738A, supra note 16 and infra note 24, to (1) facilitateuniform enforcement of decrees among the states, (2) discourageinterstate battles and (3) avoid jurisdictional competitionbetween states. Thompson v. Thompson, 484 U.S. 174, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988).
". . . 1. This state:
a. is the home state of the child at the time of commencement of the proceeding, or
b. had been the child's home state within six (6) 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:
a. the child and his parents, or the child and at least one contestant, have a significant connection with this state, and
b. there is available in this state substantial evidence concerning the child's present or future care, protection, training and personal relationships; or
3. The child is physically present in this state and:
a. the child has been abandoned, or
b. it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
4. a. It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs 1, 2 or 3 of this subsection, or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and
b. it is in the best interest of the child that this court assume jurisdiction." [Emphasis supplied.]
The pertinent terms of 28 U.S.C.A. § 1738A are:
"* * *
(c) A child custody determination made by a court of a State is consistent with the provisions of this section only if —
(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:
(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child's home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;
(B)(i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child's present or future care, protection, training, and personal relationships;
(C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse;
(D)(i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C) or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or
(E) the court has continuing jurisdiction pursuant to subsection (d) of this section. * * *"
See Tex.Fam.Code Ann. § 11.53 (Vernon 1986). Jurisdiction based upon (1) significant connections of the child and a party to the state or (2) the availability of substantial evidence about the child's present or future care may be exercised onlyif "it appears that no other state would have home-statejurisdiction." § 1738A(c)(B)(i) and Tex.Fam.Code Ann. § 11.53(a)(2) (Vernon 1986).
"The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another State." [Emphasis supplied.]
"Before making a decree under this act, reasonable notice and opportunity to be heard shall be given to the contestants. . . ." [Emphasis supplied.]
"Before a child custody determination is made, reasonable notice and opportunity to be heard shall be given to the contestants. . . ." [Emphasis supplied.]
"Because of the havoc wreaked by simultaneous and competitive jurisdiction . . . this section seeks to avoid jurisdictional conflict with all feasible means. . . .
When the courts of more than one state have jurisdiction under sections 3 or 14, priority in time determines which court will proceed with the action, but the application of the inconvenient forum principle of section 7 may result in the handling of the case by the other court.
While jurisdiction need not be yielded under subsection (a) if the other court would not have jurisdiction under the criteria of this Act, the policy against simultaneous custody proceedings is so strong that it might in a particular situation be appropriate to leave the case to the other court even under such circumstances." [Emphasis supplied.]
"(a) A suit affecting the parent-child relationship shall be commenced by the filing of a petition as provided in this chapter. . . ."
"A civil suit in the district or county court shall be commenced by a petition filed in the office of the clerk." [Emphasis mine.]
"* * *
"(5) `Home state' means the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as a parent, for at least six (6) consecutive months. . . . Periods of temporary absence of any of the named persons are counted as part of the six-month period.
"(8) `Physical custody' means actual possession and control of a child.
"(9) `Person acting as a parent' means a person other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody.
* * *"
"(a) An original suit affecting the parent-child relationship may be brought at any time by: (8) a person who has had actual possession and control of the child for at least six months immediately preceding the filing of the petition; * * *"
"Any communication received from another state informing this state of a finding of inconvenient forum because a court of this state is the more appropriate forum shall be filed in the custody registry of the appropriate court. . . ." [Emphasis supplied.]
"(a) A court that has jurisdiction under this chapter to make an initial . . . decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
* * *
(c) In determining if it is an inconvenient forum, the court shall consider if it is in the best interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
* * *
(h) On dismissal or stay of proceedings under this section, the court shall inform the court found to be the more appropriate forum of this fact. . . .
(i) Any communication received from another state informing this state of a finding of inconvenient forum because a court of this state is the more appropriate forum shall be filed in the custody registry of the appropriate court. . . ."