dissenting.
The majority apparently lost sight of the fact that the Trial Court dismissed the complaint on defendant’s motion to dismiss for lack of jurisdiction, when it said “We believe it was her [petitioner] burden to prove that she will not receive due process in Panama, and that Panama will not exercise jurisdiction in accordance with the policies embodied by the U.C.C.J.A.”
I would remand for an evidentiary hearing which has not been accorded the plaintiff.
In my view, plaintiffs affidavits establish a disputed issue of fact on the safety and welfare of the children in Panama which is sufficient to be accorded an evi-dentiary hearing, assuming arguendo that Panama is the home state under the majority’s analysis. In this regard, our Supreme Court has recognized that jurisdiction in child custody cases under these circumstances may be in more than one state. See State, ex rel Cooper v. Hamilton, 688 S.W.2d 821 (Tenn.1985). Moreover, when the court’s jurisdiction is at issue, even a summary judgment proceeding is not appropriate. See Nicholstone Book Bindery, Inc., v. Chelsea House Pub., 621 S.W.2d 560 (Tenn.1981).
Absent a special compact, no sovereign is bound to give effect within its dominions to a judgment rendered by the tribunals of another country. 28 U.S.C. 1738. Panama is not a signatory to the Hague Convention/International Child Abduction Remedies Act, and our courts are at liberty to give or refuse effect to such judgments as may be found just and equitable. 47 Am. Jur.2d, Judgments § 1215 (1969) Annot. 13 ALR 4th 1109.
42 U.S.C. § 11-601 (1980) provides a treaty framework to resolve and deter the international abduction and retention of children. Judgments by foreign courts pursuant to the Act are entitled to full faith and credit from U.S. courts, 42 U.S.C. § 11-603(g). If the child whose custody is at issue was habitually resident in a country that is a non-signatory to the Act, the parent seeking to enforce a foreign country judgment has no rights under the Act.
In Mohsen v. Mohsen, 715 F.Supp. 1063 (D.Wyoming 1989) a mother took her children from the native country of Bahrain to the U.S. When her husband filed a petition under 42 U.S.C. 11-601 in the U.S. court, that court dismissed the petition because Bahrain had not adopted the Act. Mohsen recognized that the aggrieved father had other remedies, since the Act is not exclusive, but is in addition to other remedies under other laws or international agreements. Tennessee’s codification of the UCCJA, T.C.A. § 36-6-201, et seq., may be considered such a remedy. This section, however, codifies the safeguards of the public policy exceptions of common law, i-.e., if the foreign custody judgment is rendered without minimal due process it will not be honored in this State.
I would vacate the Trial Court’s order summarily dismissing the complaint, remand to the Trial Court and direct that a guardian ad litem be appointed for the minor children. If the Panamanian Court’s order is final and was issued pursuant to the International Child Abduction Remedies Act, the order is void under Mohsen. If the Panamanian order was issued pursuant to Panamanian domestic law, the order is enforceable in Tennessee only if it was issued after the proceeding had met the due process requirements of Tennessee law.
I would remand for an evidentiary hearing on the material factual issues.