Stubbs v. Weathersby

LANDAU, J.,

dissenting.

The majority concludes that, because the child lived with the Stubbses in Oregon for three months, the trial court properly assumed jurisdiction over this case under the Uniform Child Custody Jurisdiction Act (UCCJA). In my view, *609that conclusion cannot be reconciled with the jurisdictional prerequisite of the UCCJA that the child and at least one contestant have “significant connection” with this state. Furthermore, I find no other basis in the law to override the statutory preference for the exercise of jurisdiction by the child’s “home state,” which, in this case, incontestably is Washington. Therefore, I respectfully dissent.1

The UCCJA, adopted by Oregon and codified at ORS 109.700 to ORS 109.930, provides four potential bases for the exercise of jurisdiction:

“A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
“(a) This state is the home state of the child at the time of commencement of the proceeding, or had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state because of removal or retention by a person claiming custody or for other reasons, and a parent or person acting as parent continues to live in this state;
“(b) It is in the best interest of the child that a court of this state assume jurisdiction because the child and the parents of the child, or the child and at least one contestant, have a significant connection with this state, and there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
“(c) The child is physically present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
“(d) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (a), (b) or (c) 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 it is in the best interest of the child that this court assume jurisdiction.” ORS 109.730(1).

*610In addition, it expressly provides that physical presence of the child in this state “is not alone sufficient to confer jurisdiction.” ORS 109.730(2).

In this case, there can be no debate that Oregon is not the child’s home state. The UCCJA defines “home state” as

“the state in which the child, immediately preceding the time involved, lived with the parents of the child, a parent, or a person acting as a parent, for at least six consecutive months * * ORS 109.710(5).

At the commencement of this proceeding, the child had lived in Oregon only three months, short of the six months required to establish jurisdiction in Oregon as the child’s home state. The child did, however, live with a parent or a person acting as her parent in Washington for eight consecutive months before the commencement of this action. That makes Washington the home state for the purposes of determining jurisdiction under the UCCJA. Because the UCCJA gives preference to home state jurisdiction, I would end the inquiry at that point. See Plas v. Superior Court, 155 Cal App 3d 1008, 1014, 202 Cal Rptr 490 (1984); Hattoum v. Hattoum, 295 Pa Super 169, 175, 441 A2d 403, 405 (1982).

The majority concludes that, even though Oregon is not the child’s home state, jurisdiction may be asserted under the “significant connection” test of ORS 109.730(1)(b).2 The “significant connection” test, however, is a very narrow one. As the Commissioner on Uniform State Laws commented on *611this particular section of the UCCJA, the section must be read in connection with the statutory statement that mere presence in the state is insufficient to establish jurisdiction:

“Paragraph [b] of subsection [1] is supplemented by subsection [2] which is designed to discourage unilateral removal of children to other states and to guard generally against too liberal an interpretation of paragraph [b]. Short-term presence in the state is not enough even though there may be an intent to stay longer, perhaps an intent to establish a technical ‘domicile’ for divorce or other purposes.
“Paragraph [b] perhaps more than any other provision of the Act requires that it be interpreted in the spirit of the legislative purposes [of the Act], The paragraph was phrased in general terms in order to be flexible enough to cover many fact situations too diverse to lend themselves to exact description. But its purpose is to limit jurisdiction rather than to proliferate it. The first clause of the paragraph is important: jurisdiction exists only if it is in the child’s interest, not merely the interest or convenience of the feuding parties, to determine custody in a particular state. The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the state.” Comment, 9 Uniform Laws Annotated 145 (1988). (Emphasis supplied.)

Consistent with that policy, Oregon courts have required that, to establish jurisdiction under ORS 109.730(1)(b), the child and at least one contestant must have a “significant connection” with Oregon and there must be substantial evidence in Oregon concerning the child’s care and relationship with others. If the child or the contestant does not have a significant connection with this state, the jurisdictional inquiry ends. State ex rel Torres v. Mason, 315 Or 386, 393, 848 P2d 592 (1993).

In this case, the majority concludes that the child has a significant connection with this state, on the basis of the three months that she had spent in Oregon before the commencement of this action, during which time “she was cared for daily by the Stubbses, developed a bond with them, and adjusted to a new home environment.” 126 Or App at 600.

I do not understand how that amounts to more than mere short-term presence in this state, which the UCCJA *612explicitly provides is insufficient to confer jurisdiction. Particularly in the light of the child’s and mother’s substantial contacts with the state of Washington, I find the majority’s analysis hard to square with the requirement that jurisdiction is to be based on “maximum rather than minimum contact with the state.”

The majority contends that there is also “substantial evidence as to [the child’s] present and future care, training, and personal relationships in Oregon, including evidence of medical care and contact with members of the Stubbses’ church.” I find no such “substantial evidence,” certainly not of the type that establishes ‘ ‘maximum rather than minimum contact” with Oregon.

The record reveals that the Stubbses treated the child as their daughter for three months, during which time they cared for, clothed and fed her. That is no more than evidence that the child was present in Oregon for that brief period of time. The record also shows that the Stubbses planned on “making sure that [the child] gets into preschool, gets into kindergarten and then gets through elementary school and into high school and then through college. ’ ’ That is not evidence of an 11-month-old child’s present care and training.3 There is evidence that the Stubbses took the child to a doctor for ear infections, although it is not clear from the testimony whether that medical care took place before or after the initiation of this action. There is evidence that the Stubbses took the child to church, although Mrs. Stubbs testified that for at least two of the three months they did that, the child would not “go to” any member of the church. In fact, the evidence reveals that the three-month period was a traumatic one for the child. According to Mrs. Stubbs’s own testimony, for at least two months, the child would not sleep through the night, cried constantly and would repeatedly overeat to the point of vomiting, because of the separation from her Washington home. In my view, the record shows far less than the “significant connection” to Oregon that the *613UCCJA requires. Accordingly, I would find that Oregon lacks jurisdiction under ORS 109.730(1)(b).

The UCCJA offers a third basis for asserting jurisdiction, when the child is physically present in the state and the child has either been abandoned or is in need of emergency care or treatment. ORS 109.730(1)(c). No one asserts that as a basis for Oregon jurisdiction in this case.

There is finally a basis for asserting “default jurisdiction,” which the trial court listed as an alternative ground for its conclusion that Oregon has jurisdiction over this case. However, that basis for asserting jurisdiction under the UCCJA applies only if no other state has jurisdiction or if another state has declined to exercise jurisdiction because this one is the more appropriate forum. ORS 109.730(1)(d); see also State ex rel Torres v. Mason, supra, 315 Or at 394. In this case, Washington — which has adopted the UCCJA — could assert jurisdiction, as the child’s “home state.” Indeed, that is the preferred basis for asserting jurisdiction under the UCCJA. Washington also could assert “significant connection” jurisdiction, on the basis of the child’s and mother’s eight months in that state, which included the exercise of jurisdiction by a Washington court over a juvenile dependency hearing involving the child. Moreover, there is no evidence that any other state has declined to exercise jurisdiction in favor of Oregon. I would hold that the trial court erred in asserting “default jurisdiction” under ORS 109.730(1)(d).

Because I would resolve this case on jurisdictional grounds, I do not discuss the other issues addressed by the majority.

The majority states that it does not matter that Washington is the child’s home state, because the UCCJA provides for concurrent jurisdiction, when there is a significant connection with another state. That observation, however, misses the point. Although the UCCJA certainly contemplates the possibility of concurrent jurisdiction, it also contemplates a definite priority of bases for assuming jurisdiction, and home state jurisdiction is clearly the “preferred” basis. The Commissioner on Uniform State Laws stated that preference in the following terms:

“In the first place, a court in the child’s home state has jurisdiction, and secondly, if there is no home state or the child and his family have equal or stronger ties with another state, a court in that state has jurisdiction.” Comment, 9 Uniform Laws Annotated 144 (1988). (Emphasis supplied.)

Similarly, a substantial body of case law recognizes the preference for home state jurisdiction, absent a “compellingjustification” for assertingjurisdiction on another basis. E.g., Hafer v. Superior Court, 126 Cal App 3d 856, 867, 179 Cal Rptr 132 (1981); Pías v. Superior Court, supra, 155 Cal App 3d at 1014; Hattoum v. Hattoum, supra, 295 Pa Super at 175; In re McDonald, 74 Mich App 119,129, 253 NW2d 678 (1977); see also Haralambie, Handling Child Custody, Abuse and Adoption Cases 15 (1993).

It is evidence of the Stubbses’ plans for the child’s future care. However, evidence of future care is not sufficient to establish a child’s connection with a state at the time of the commencement of a hearing. Sullivan v. Sullivan, 87 AD2d 42, 44, 451 NYS2d 851, 853 (App Div 1982).