FIFTH DIVISION
MCFADDEN, P. J.,
GOBEIL and PINSON, JJ.
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.
https://www.gaappeals.us/rules
May 24, 2022
In the Court of Appeals of Georgia
A22A0399. MAKIN v. DAVIS.
GOBEIL, Judge.
Following the grant of his application for discretionary review, Andrew Rufus
Makin (the “father”) appeals from the superior court’s order denying his petition to
domesticate and register a foreign judgment governing child custody. On appeal, the
father argues that Katherine Elizabeth Ann Davis (the “mother”) failed to establish
that (1) the foreign court lacked jurisdiction over the matter; (2) the foreign child
custody determination has been vacated, stayed, or modified; and (3) she did not
receive notice of the foreign court proceedings. For the reasons that follow, we now
reverse.
“When reviewing an order in a child custody case, we apply a de novo standard
of review to any questions of law decided by the trial court.” Frith v. Harvey, 361 Ga.
App. 348, 349 (864 SE2d 460) (2021) (citation and punctuation omitted). The record
shows the following. The father and the mother are former spouses, divorced by a
final judgment and decree of the Superior Court of Monroe County (the “superior
court”) entered on September 5, 2019. The parties have one minor child who was
born in Georgia in 2014.1 The family resided in the United Kingdom for a period of
time, but the mother and the child returned to Georgia around March 2017 while the
father remained in the United Kingdom. The father applied for a “Child Arrangements
and Prohibited Steps Order” in the Family Court Sitting at Reading County Court in
London, United Kingdom (the “U.K. family court”) and, on March 6, 2017, the U.K.
family court issued an order (the “2017 CAPSO”), setting forth certain obligations
of the parents as to custody of the child, including the mother’s obligation to return
the child to the father in England by June 3, 2018. The 2017 CAPSO outlined that the
parties agreed that U.K. courts retained “primary jurisdiction” to consider custody
matters related to the child, and the mother agreed not to challenge the 2017 CAPSO
or initiate any other legal proceedings related to the child in Georgia or elsewhere in
the United States.
1
The record shows that the parties also had a second child, but that child is not at
issue in the instant appeal.
2
On March 8, 2017, the father filed a petition in the superior court to have the
2017 CAPSO domesticated in and recognized by the Georgia court. In his petition,
the father stated that he lives in the United Kingdom and the mother and child live in
Monroe County; that the parties have agreed that the U.K. courts have primary
jurisdiction to consider matters related to parenting the child; that the child is a
resident of the United Kingdom and courts in that country are best suited to make
decisions about the child’s upbringing and welfare; that the parents have agreed not
to initiate proceedings in any courts in the United States regarding the child; and that
the order is being domesticated so that both parents can exercise their custody and
visitation rights pursuant to the 2017 CAPSO. In a pleading filed on March 15, 2017,
the mother acknowledged service of the petition and agreed to the domestication of
the 2017 CAPSO. The superior court entered a final order domesticating the 2017
CAPSO in July 2018, nunc pro tunc to March 13, 2017.
The mother filed an application in the U.K. family court to permanently remove
the child to the United States, and the father applied for the child’s return to the
United Kingdom. On April 18, 2019, the judge in the U.K. family court signed a
“Child Arrangements Order” (the “2019 CAO”) which stated that the mother is
permitted to remove the child to the United States until June 22, 2021, and provided
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for visitation by the father. The 2019 CAO stated that the applications are adjourned
and would be further reviewed at the next hearing. It specified that a review hearing
would be conducted by video-conference on March 1, 2021, and provided that the
father would have visitation in the United States and United Kingdom through 2022
and “after summer 2022.” It further provided that where the 2019 CAO is in force,
no person may cause the child to be removed from the United Kingdom without the
written consent of both parents or the leave of the court. It does not appear from the
record that either party ever petitioned to vacate, stay, or modify the 2019 CAO.
On January 30, 2019, four months before the 2019 CAO was entered, the
mother filed a complaint for divorce in the superior court. In her complaint, the
mother alleged that she is a resident of Monroe County, the father is a resident of the
United Kingdom, and their child was born in Georgia. She represented that the parties
separated on October 18, 2016. The mother alleged that she has not been a party in
any other litigation in the United States concerning the child and that no foreign
orders concerning the child have been registered or confirmed in Georgia or any other
state pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act
(“UCCJEA”). She sought primary physical custody of the child with the father having
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visitation.2 On September 5, 2019, after the entry of the 2019 CAO, the superior court
entered a Second Amended Final Judgment and Decree of divorce, granting the
mother primary physical custody and awarding the parents shared joint legal custody
of the child.
On September 28, 2020, the father filed a petition to domesticate and register
the 2019 CAO in the superior court. The father stated that the mother and child are
permanent residents of Georgia, that Georgia is the child’s home state for purposes
of enforcing his parenting time under the 2019 CAO, that the parties are subject to the
1996 Convention between the United States and Great Britain that determines which
state has jurisdiction regarding child custody, and that the 2019 CAO governs the
parties’ parenting time with the child. In her answer to the petition, the mother
admitted permanently residing in the United States, denied most other allegations, and
asked that the petition be denied.
In a letter brief submitted to the superior court, the mother asserted that the
domestication of the foreign decree is contrary to Georgia public policy given the
father’s conduct and the best interest of the child, and that the Georgia final divorce
2
In his appellant brief, the father represents that he was served with the complaint
for divorce in February 2019 while he was in Georgia visiting the child; he does not
indicate whether he answered the complaint.
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decree and incorporated documents govern the parents’s rights and responsibilities
because they are final (unlike the 2019 CAO). Following a hearing, the superior court
entered an order denying the father’s petition to domesticate the foreign judgment.3
The father filed an application for discretionary review, which we granted. See Case
No. A21D0214 (Mar. 3, 2021). The instant appeal followed.
The UCCJEA was created “to deal with the problems of competing
jurisdictions entering conflicting interstate child custody orders, forum shopping, and
the drawn out and complex child custody legal proceedings often encountered by
parties when multiple states are involved.” Delgado v. Combs, 314 Ga. App. 419, 424
(724 SE2d 436) (2012) (citation and punctuation omitted). Georgia adopted its
version of the UCCJEA in 2001, which is codified at OCGA § 19-9-40 et seq. Part
2 of the UCCJEA contains provisions related to a court’s jurisdiction over custody
matters. See OCGA §§ 19-9-61 through 19-9-70.
As relevant here, pursuant to OCGA § 19-9-83 (a),
[a] court of this state shall recognize and enforce a child custody
determination of a court of another state[4] if the latter court exercised
3
The superior court’s order included no findings of fact or conclusions of law.
4
For purposes of the UCCJEA, “[a] court of [Georgia] shall treat a foreign county
as if it were a state of the United States[.]” OCGA § 19-9-44 (a).
6
jurisdiction in substantial conformity with this article or the
determination was made under factual circumstances meeting the
jurisdictional standards of this article and the determination has not been
modified in accordance with this article.
OCGA § 19-9-85 (a) provides that a child custody determination issued by a court of
another state may be registered in this state when the person seeking registration
follows certain procedures. Upon receiving the required documents, the registering
court “shall [c]ause the determination to be filed as a foreign judgment” and give
notice and an opportunity to contest the registration to any person who has been
awarded custody or visitation in the custody determination. OCGA § 19-9-85 (b)
(emphasis supplied).
OCGA § 19-9-85 (d) provides:
A person seeking to contest the validity of a registered order must
request a hearing within 20 days after service of the notice. At that
hearing, the court shall confirm the registered order unless the person
contesting registration establishes that:
(1) The issuing court did not have jurisdiction under Part 2
[“Jurisdiction”] of [the UCCJEA];
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(2) The child custody determination sought to be registered has been
vacated, stayed, or modified by a court having jurisdiction to do so
under Part 2 of this article; or
(3) The person contesting registration was entitled to notice, but notice
was not given in accordance with the standards of Code Section 19-9-47
in the proceedings before the court that issued the order for which
registration is sought.
1. The father contends that the superior court erred by denying his petition to
domesticate the 2019 CAO pursuant to OCGA § 19-9-85 (b) & (d), because the
mother did not establish that the issuing court lacked jurisdiction under Part 2 of the
UCCJEA. According to the father, the mother submitted to the jurisdiction of the
foreign court by filing an application in the U.K. family court to remove the child to
the United States, which that court granted in the 2019 CAO through June 2021. He
further highlights that the mother submitted to the foreign court’s jurisdiction by
acknowledging service of and agreeing to the domestication of the 2017 CAPSO,
which prohibited the parties from challenging in the United States the fact that the
U.K. courts had jurisdiction over custody matters involving the child.
Pursuant to the UCCJEA, the mother had the burden of establishing that the
U.K. family court did not have jurisdiction when it entered the 2019 CAO. OCGA §
8
19-9-85 (d) (1). The mother maintains that the U.K. family court lacked jurisdiction
because it did not undertake any analysis of the minor child’s home state, as required
under OCGA § 19-9-61 (a) (1), prior to entry of the 2019 CAO. She states that under
the UCCJEA, “[p]hysical presence of, or personal jurisdiction over, a party or a child
is not necessary or sufficient to make a child custody determination.” OCGA § 19-9-
61 (c). The mother, however, has not shown that the 2019 CAO was “an initial child
custody determination” governed by that code section. See OCGA § 19-9-61 (a) (1)
(“a court of this state has jurisdiction to make an initial child custody determination
only if . . . [Georgia] is the home state of the child on the date of the commencement
of the proceeding, or was the home state of the child within six months before the
commencement of the proceeding and the child is absent from this state but a parent
or person acting as a parent continues to live in this state[.]”). Moreover, even if that
code section applies, the mother has not cited any law mandating that the foreign
court order include such an express finding as to the child’s home state under OCGA
§ 19-9-61. On the contrary, this Court has held that “the UCCJEA [does] not require
that the court include it its order express factual findings as to the children’s home
state.” Ravi v. Burns, 354 Ga. App. 608, 612 (1) (841 SE2d 407) (2020) (involving
Georgia court exercising jurisdiction to consider petition to modify child custody
9
determination made by court of another state) (punctuation omitted). See also
Wondium v. Getachew, 289 Ga. 208, 210 (2) (710 SE2d 139) (2011) (rejecting
father’s argument that the UCCJEA required “jurisdictional findings regarding the
children’s home state” in the body of the court’s custody modification order because
the Court found “no such authority”) (punctuation omitted). It follows that the mother
has failed to carry her burden of showing that the U.K. family court “did not have
jurisdiction under Part 2 of [the UCCJEA].” OCGA § 19-9-85 (d) (1).5
5
We also note that the mother’s arguments on appeal challenging the jurisdiction
of the U.K. family court to enter the 2019 CAO contradict her earlier position in which she
agreed that the foreign court has jurisdiction over the child custody matter. Specifically,
the 2017 CAPSO, which was domesticated in Georgia with the mother’s consent in March
2017, was still in effect when the mother filed the application to remove the child from the
United Kingdom pursuant to a provision in the 2017 CAPSO (which resulted in the
issuance of the 2019 CAO), as well as when she filed for divorce in the superior court.
Under the provisions of the 2017 CAPSO, the mother expressly agreed, among other
things, that the U.K. courts have primary jurisdiction to consider matters related to
parenting the child. See Lynn v. Lowndes County Health Svcs., LLC, 354 Ga. App. 242,
250 (2) (b) (840 SE2d 623) (2020) (“(U)nder the doctrine of judicial estoppel, a party
cannot take a position, persuade a court to accept the same, and then later assert an
inconsistent position.”) (citation and punctuation omitted). However, the issue of
judicial estoppel was not raised below or on appeal, and thus, we need not address it
to resolve the issues in the instant appeal. See 9766, LLC v. Dwarf House, Inc., 331 Ga.
App. 287, 291 (4) (b) (771 SE2d 1) (2015) (“This [C]ourt is for the correction of
errors, and where the trial court has not ruled on an issue, we will not address it.”)
(citation and punctuation omitted).
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2. The father asserts that the superior court erred by denying his petition when
the mother failed to establish that the child custody determination sought to be
registered has been vacated, stayed, or modified by a court with jurisdiction to do so
under Part 2 of the UCCJEA. Indeed, there is no indication in the record that the 2019
CAO was vacated, stayed, or modified. Instead, the 2019 CAO appears to have been
in effect beginning in April 2019 and continuing “after summer 2022.” In fact, the
2019 CAO did not have an expiration date or termination event and it contained
hearing and visitation dates that had not yet passed when the father filed the petition
to domesticate that order. Thus, the mother failed to meet her burden, under OCGA
§ 19-9-85 (d) (2), to challenge the validity of the 2019 CAO sought to be registered
in the instant action.
3. Finally, the father contends that the superior court erred by denying his
petition when the mother did not establish that she was entitled to notice in
accordance with OCGA § 19-9-47 and was not given such notice before the U.K.
family court issued the judgment being domesticated, the 2019 CAO.
Under OCGA § 19-9-85 (d) (3), a person contesting the registration of a child
custody determination is entitled to notice in the proceedings before the court that
issued the order for which registration is sought — notice in accordance with the
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standards set forth in OCGA § 19-9-47. But OCGA § 19-9-47 (c) provides that
“[n]otice is not required for the exercise of jurisdiction with respect to a person who
submits to the jurisdiction of the court.” Inasmuch as the mother clearly submitted
herself to the jurisdiction of the U.K. family court on the issue of child custody —
through her application in the U.K. family court to permanently remove the child to
the U.S. that resulted in the issuance of the 2019 CAO — she failed to establish that
she did not receive the required notice of the U.K. proceeding as outlined in OCGA
§ 19-9-85 (d) (3).
Because the mother failed to meet her burden under OCGA § 19-9-85 (d)
contesting registration of the 2019 CAO, the trial court erred in denying the father’s
petition to register that order and we now reverse.
Judgment reversed. McFadden, P. J., and Pinson, J., concur.
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