dissenting. This case clashes with the purposes of both the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Ark. Code Ann. §§ 9-19-101 to -317 (Repl. 2002), and the Parental Kidnapping Protection Act (PKPA), 28 U.S.C. § 1738A, and represents a classic example of how a state should not interpret and apply those Acts. Those Acts were enacted to encourage cooperation between sister states in custody matters. Arkansas’s courts in this case have failed miserably to comply with the intent and letter of the UCCJEA and the PKPA.
The facts leading to this appeal are largely undisputed, and a fair summary of the facts will reflect how Arkansas courts have declined to extend any cooperation with Florida. That state clearly had the paramount interests in resolving this custody matter involving a ten-day-old child named Cheyenne Pruitt Cox, whose only contact with Arkansas is that she was born in Arkansas and was only ten days old when her paternal grandmother, Joyce Cox, filed an action in an Arkansas probate court seeking guardianship of Cheyenne. This case is all about the Pruitt family which lives in Florida; to understand this case, I first introduce the reader to the members of that family and the family’s relevant history.
Stacy and Ruben Pruitt have been and remain Florida residents and domiciliaries. In 1999, the Florida Department of Children and Family Services investigated complaints regarding Stacy and Ruben and their children, and this investigation resulted in initiating dependent-neglect proceedings against the Pruitts. These proceedings culminated in Florida’s DCFS’s petition to terminate the Pruitts’ parental rights with respect to their other children. In that Florida proceeding, the Pruitts lost custody of their other children for failure to protect them, failure to complete required case plans, for using drugs, and for the abandonment of their children. Ruben’s mother, Joyce Cox, lived in Florida during this period and was given custody of the children for three months; however, she called Florida’s DCFS and asked DCFS to take them back because the children were rowdy.
Cox then moved to Arkansas in March of 2001, and has lived in Paragould since April 2001. In late April 2001, Stacy and Ruben “showed up” at Cox’s home. Stacy was in a late-pregnancy stage, and she went to a doctor who advised her not to travel back to Florida because she might go into labor and have the baby. The Pruitts remained in Arkansas until after Cheyenne’s birth on May 5, 2001. Stacy and Ruben left Arkansas to return to Florida on May 12, 2001, but they left the baby with Joyce Cox until further notice of what was going to happen to the Pruitts’ other children in the Florida proceeding. Stacy placed the name “Cox” on the baby’s birth certificate so the child’s full name was shown as “Cheyenne lone Pruitt Cox.” Cox and Stacy had talked about giving the child the name “Cox,” but Cox only learned of this after Cheyenne’s birth on May 5, 2001.
As the reader may clearly surmise from the above, the only contact Stacy, Ruben, and Cox had with Arkansas during this period of controversy is Cox’s move to Arkansas in March or April of 2001, and the Pruitts’ brief few weeks’ stay in April and May, during which Stacy gave birth to Cheyenne.
On May 15, 2001, the circuit judge in the Florida proceeding issued an order for Cheyenne to be taken into custody. In his order, the Florida judge stated Cheyenne was possibly in Paragould with Joyce Cox, Stacy’s mother-in-law. On May 15, 2001, the Arkansas Department of Human Services (DHS), acted on that Florida court order by going to the Cox home and taking physical custody of Cheyenne. However, on May 16, 2001, Joyce Cox promptly petitioned the Probate Court of Greene County, Arkansas for guardianship of Cheyenne, and, on the same day, filed Stacy’s and Ruben’s consents, whereby they agreed that Cox should be appointed guardian. On the same date, the Greene County Probate Court entered an ex parte temporary order awarding Cox guardianship of Cheyenne, and setting another hearing on May 18, 2001. No record was made of the ex parte hearing.1
On May 17, 2001, the Arkansas DHS moved to dismiss the Arkansas guardianship proceeding, submitting that the Florida court had jurisdiction of this matter and, under § 9-19-313 of the UCCJEA and U.S. Const, art 4, § 1, the State of Arkansas was required to give full faith and credit to its sister state, Florida’s, May 15, 2001, order giving that state custody and jurisdiction over Cheyenne. Cox responded, arguing the Florida DCFS and Arkansas DHS had failed to show facts sufficient to establish a jurisdictional claim involving Cheyenne. Cox further contended that, under the UCCJEA, the Arkansas probate court had initial child-custody jurisdiction over Cheyenne because she had lived only in Arkansas, making it her home state.
At a hearing commencing on May 18, which was continued to and ended on May 21, 2001, the probate court considered testimony and arguments of counsel. DHS argued the Arkansas action should be dismissed because Florida had continuing jurisdiction under the PKPA, or, alternatively, under the UCCJEA, § 9-19-207, because Florida was the more appropriate forum. The court denied DHS’s motion to dismiss the guardianship proceeding, holding the Florida court’s May 15, 2001, order was not entided to full faith and credit. The court further ordered DHS to take such action necessary to return Cheyenne to Arkansas and place her in the temporary care of Cox. On May 18, 2001, DHS had already turned Cheyenne over to the Florida DCFS as directed by the Florida court’s May 15, 2001, order. The Arkansas judge set a final hearing on the guardianship issue to be held on July 30, 2001. This May 21, 2001, order denying DHS’s motion to dismiss was entered on June 21, 2001.
At the July 30, 2001, hearing, counsel for Cox, Arkansas’s DHS, and Florida’s DCFS appeared, and further testimony and arguments were offered. At this hearing, Cox’s attorney complained that the Arkansas DHS and the Florida DCFS counsel argued jurisdiction issues regarding the UCCJEA and the PKPA, but pointed out that the probate court had denied giving the Florida ex parte order recognition because the order was not final. In its order filed on September 19, 2001, the Arkansas probate court again agreed with Cox and appointed her to serve as Cheyenne’s guardian. As provided and directed under § 9-19-206 of the UCCJEA, when simultaneous proceedings exist, the court’s order related that the probate court made an unsuccessful attempt to discuss the issue of jurisdiction with the Florida court. After such effort, the court concluded the Florida court’s May 15, 2001, order was not final and appealable and, therefore, not entitled to full faith and credit. The probate judge further found that the Arkansas DHS had willfully violated its order by refusing to return Cheyenne to Cox and by delivering Cheyenne to Florida representatives on May 18 for transport to Florida. The probate court further ordered Arkansas DHS to reimburse Cox all reasonable expenses incurred in the return of Cheyenne, and found that DHS could purge itself of contempt by returning Cheyenne to Cox. It also held that any defect in service- and notice raised by DHS was waived by it because DHS never objected, its employees and agents admitted having knowledge of the Arkansas court’s order of May 16, 2001, and they had actively participated in the case since its filing.
DHS brings its appeal from the probate court orders of May 16, May 21, June 21, and September 19, 2001. DHS contends the probate court erred (1) in refusing to give full faith and credit to the Florida court’s May 15 order directing Cheyenne be picked up and returned to Florida, and (2) in ruling that Arkansas, not Florida, had jurisdiction of this matter under the UCCJEA and the PKPA.
DHS first argues that the Arkansas court erred by refusing to recognize the Florida court order based on the fact that the order was an interlocutory order rather than a final one. The probate court was in error by ruling it could only consider orders or judgments that concluded a custody proceeding. Cox attempts to support the Arkansas court’s ruling by citing the case of Gladfelter v. Gladfelter, 205 Ark. 1019, 172 S.W.2d 246 (1943), for the stated proposition that, in order for a judgment or decree of one state to be recognized and enforced in a sister state, it is necessary that the judgment shall be final, and not interlocutory.
Gladfelter was decided long before the enactment of the PKPA in 1980 and the passage of Arkansas’s UCCJEA in 1999.2 Both of these laws contemplate the enforcement of custody determinations that need not always finalize a child-custody proceeding. An analysis of the UCCJEA clearly reflects why an interlocutory order requires recognition by sister states. For example, § 9-19-313 of the UCCJEA reads as follows:
A court of this state shall accord full faith and credit to an order issued by another state and consistent with this chapter which enforces a child-custody determination by a court of another state unless the order has been vacated, stayed, or modified by a court having jurisdiction to do so under subchapter 2 of this chapter.
In making its argument, DHS relies on § 9-19-206(a) and (b) of the UCCJEA, which control when simultaneous proceedings in different states are underway. Those subsections read, in pertinent part, as follows:
(a) Except as otherwise provided in § 9-19-204,3 a court of this state may not exercise its jurisdiction under this subchapter if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under § 9-19-207.
(b) Except as otherwise provided in § 9-19-204, a court of this state, before hearing a child-custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to § 9-19-209. If the court determines that a child-custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this chapter does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.4 (Emphasis added.)
In reviewing and applying the above provisions to the situation now before this court, it is clear that, on May 15, 2001, the Florida court had issued an order for the Florida DCFS to take custody of Cheyenne in an ongoing dependent-neglect action commenced in 1999, involving Stacy and Ruben Pruitt and their other children.5 Because the Pruitts and their other children were parties to the ongoing Florida court proceeding, that court exercised its jurisdiction and authority to order Florida’s DCFS to locate and take custody of Cheyenne. Unquestionably, the Florida court had a child-custody proceeding commenced before it, as contemplated under §§ 9-19-206(b) and 9-19-102(4) when that court issued its May 15 order. Section 9-19-102(4), in relevant part, provides that “child-custody proceeding” means a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. The majority relates that the Florida court’s order seeking physical custody of Cheyenne was not a “child custody determination” that may be enforced under the UCCJEA, but this statute states otherwise. Indeed, because the Florida court had continuing jurisdiction over the Pruitts and their children, and because Florida DCFS had custody and jurisdiction over the Pruitts’ children, I would maintain that the Pruitts themselves did not have the authority to consent to Cox’s petition for guardianship.
Upon learning of the Florida court’s order, the Arkansas probate court was required under § 9-19-206(b) to stay its proceeding and communicate with the Florida court. The record reflects that, when the probate court issued its ex parte order on May 16, Cox’s counsel had informed the court of the Florida court’s order. In fact, on May 17, DHS filed a motion to dismiss because the Arkansas court should give full faith and credit to the Florida court’s order, and apprised the probate court that the Florida DCFS had an open case on the Pruitt family. Moreover, when the probate court reconvened on May 18 to consider DHS’s motion to dismiss Cox’s guardianship petition, DHS again informed the probate court of the ongoing Florida proceeding and advised the court that DHS had delivered Cheyenne to Florida’s authorities pursuant to that state’s court order. The probate court continued its proceeding to May 21, when the probate court resumed its hearing and testimony was offered. At this hearing, DHS presented its position that it was placed in the dilemma of having a May 15 Florida court order to take physical custody of Cheyenne and an Arkansas probate court order of May 16 directing temporary guardianship be placed with Cox. After the Florida authorities made arrangements to pick up Cheyenne at 7:30 a.m. on May 18, DHS, in accordance with those arrangements, turned over custody of Cheyenne to Florida authorities.Also, at the May 21 hearing, DHS gave the Arkansas court the name of the Florida judge who had issued the Florida order, so that the Arkansas court could communicate with that judge.
Cox, on the other hand, testified that she had, could, and would care for Cheyenne. Of course, Cox was familiar with the court proceedings in Florida, since for a short period, Cox had had custody of Stacy’s other children, although she returned them as already mentioned above.
The Arkansas court held another hearing on July 20, 2001, on Cox’s request for a final guardianship order, and in addition to DHS and Cox’s counsel, Florida’s DCFS attorney, Daniel Lake, appeared and participated in the proceeding. Much of what occurred at this hearing was repetitive of the testimony and arguments presented at the earlier hearings. Cox and her husband made it clear that they had provided a place for Cheyenne to stay in their home, and had obtained insurance and other benefits that would be to the infant’s best future interests. Cox also denied that it was hers or the Pruitts’ intent to hide Cheyenne by giving Cheyenne the last name of Cox. Florida DCFS counsel, Mr. Lake, informed the Arkansas judge that the Florida judge had tried to contact the Arkansas judge, but had been unsuccessful, and the probate judge said that he likewise had been unsuccessful in communicating with the Florida court. From the record, it is impossible to discern if the Arkansas judge made more than one attempt to contact the Florida judge. However, the record is clear that, when the Florida judge did not reach the Arkansas judge, the Florida judge instructed the Florida DHS counsel to appear at the Arkansas proceeding to be sure the Arkansas court was aware that Florida claimed a continuing interest and jurisdiction over the Pruitt family. Through cross-examination of Cox and her husband and by argument by Mr. Lake to the probate court, Lake charged that the Pruitts and Cox had made a concerted attempt to evade the Florida court and DCFS representatives, so those authorities could not take custody of Cheyenne after her birth.
In summary, my review of the record shows that when the Arkansas probate court assumed jurisdiction of Cox’s guardianship action, Florida had already entered its order for authorities to return Cheyenne to Florida. Under § 9-19-206 (b), the probate court was mandated to stay its proceeding and communicate with the Florida court. The Arkansas court here did neither. The record reflects that DHS gave the Florida judge’s name to the probate judge at the end of the May 21 hearing, but it was only at the July 20 hearing when the Arkansas judge indicated that he had tried to contact the Florida court. Nonetheless, § 9-19-206(b) further dictates that if the Florida court does not determine that the Arkansas court is a more appropriate forum, the Arkansas court shall dismiss its proceeding.
It is obvious that the Arkansas court did not comply with § 9-19-206, and while the Florida court did not make earlier contact with the Arkansas judge, that court, by directing Florida’s DCFS to appear at the Arkansas proceeding held on July 20, 2001, communicated its belief that Florida was the appropriate forum to consider Cheyenne’s best interests. As discussed above, both of Cheyenne’s parents live in Florida, Cheyenne’s siblings are there, and a three-year investigation of the Pruitts and their treatment of their children is ongoing in Florida. As alluded to earlier, Cox had lived in Florida and had custody of Stacy’s children until Cox decided to move to Paragould in March or April of 2001. It is abundantly clear that Cheyenne’s parents and her grandmother Cox have had closer connections with the Florida court when the Florida and Arkansas courts’ respective May 15 and 16 orders were entered. This Florida history and connections will also play a significant part in that state’s parental termination proceeding which will undoubtedly affect Cheyenne.
Some of the general purposes of the UCCJEA are to (1) avoid jurisdictional competition and conflict with courts of other states in child custody matters; (2) promote cooperation with the courts of other states to the end that a custody decree is rendered in the state that can best decide the case in the best interest of the child; (3) assure that litigation concerning the custody of a child take place ordinarily in the state in which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships are most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state; (4) discourage continuing controversies over child custody in the interest of greater stability for the child; (5) facilitate the enforcement of custody decrees of other states; and (6) promote and expand the exchange of information and other forms of mutual assistance between the courts of this state and those of other states concerned with the same child. Elam v. Elam, 39 Ark. App. 1, 832 S.W.2d 508 (1992) (emphasis added); see also Perez v. Tanner, 332 Ark. 356, 965 S.W.2d 90 (1998). Because the Florida court is obviously more closely associated with this case than the Arkansas court, the purposes of the UCCJEA would be better served by returning this matter to the Florida court.
As a final matter, I consider whether the foregoing analysis- and terms .of the UCCJEA conflict with the PKPA because, if it does, the federal act controls. In this respect, Cox raises an alternative argument in her brief, asserting that the Arkansas court’s exercise of jurisdiction was proper under the PKPA. She asserts that the Florida court’s order was not consistent with § 1738A(c) of the PKPA, which provides, in pertinent part, as follows:
(c) A child custody or visitation 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 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 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 the 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[.] (Emphasis added.)
28 U.S.C. § 1738A(c).
Cox argues that, under § 1738A above, Arkansas has jurisdiction of Cheyenne’s proceeding because Arkansas is her home state since she was born in Arkansas and had never left the state prior to the entry of the Florida May 15, 2001, order. In addition, Cox further submits that Florida cannot gain jurisdiction under § 1738A(c)(2)(B)(i) and (ii) because the first prong in (i) requires the state desiring to exercise jurisdiction of a custody matter to first make a determination that no state would have jurisdiction under (A). In other words, because Arkansas is Cheyenne’s home state, Florida fails to meet the requirement in (B)(i) and (ii) and, therefore, the significant-connection requirement (B) (ii) does not come into play.
As Cox points out, home state is a governing factor when considering whether the PKPA should be applied, but it is not the sole consideration. In fact,' our court has stated the PKPA hierarchy of jurisdiction preferences are: (1) continuing jurisdiction; (2) home-state jurisdiction; (3) significant connection; and (4) jurisdiction when no other jurisdictional basis is available. Murphy v. Danforth, 323 Ark. 482, 915 S.W.2d 697 (1996); Moore v. Richardson, 332 Ark. 255, 964 S.W.2d 377 (1998). The Murphy court held that the PKPA prohibits a court from exercising jurisdiction inconsistent with the provisions of the Act. The court cited § 1738(a)(g) as a provision meant to avoid the “havoc wreaked by simultaneous and competitive jurisdictions.” Id. at 490. The PKPA, § 1738A(g), reads as follows:
A court of a State shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another State where such a court of that other State is exercising jurisdiction consistendy with the provisions of this section to make a custody or visitation determination.
It is worth repeating that Florida had an ongoing proceeding where that state ended the Pruitts’ custody of their other children. Before the proceedings to terminate the Pruitts’ parental rights were concluded, Stacy came to Arkansas, gave birth to Cheyenne, left the baby with Cox, and returned to Florida. When Cheyenne was only ten days old, the Florida court issued its May 15 order to locate, pickup, and return Cheyenne to Florida because of that court’s express concern that the child may be at substantial risk of imminent harm. As previously stated, it was only a day later, May 16, that the Arkansas court entered its order granting Cox’s request to be appointed Cheyenne’s guardian.
Undoubtedly, the Arkansas court was quite assured that Cheyenne was safe and not in imminent danger when the court appointed Cox as guardian. Even so, when the Florida court issued its May 15 order, based on the ongoing investigation of the Pruitts and their treatment of Cheyenne’s siblings, it prudently entered an order seeking Cheyenne’s return to its forum. Moreover, even though the Arkansas court did not find Cheyenne in any danger, the Florida court continued its jurisdiction over the Pruitts, who remained in Florida, and over any termination of parental rights the State of Florida may ultimately seek involving any or all of the Pruitts’ children. It should be noted that in both Florida and Arkansas, one of the grounds for terminating parental rights is when such rights to a sibling or siblings have been terminated involuntarily. See Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(4)f4,) (Repl. 2002); Fla. Stat. Ann. § 39.801, etseq. See also Paslay v. Ark. Dep’t of Human Servs., 75 Ark. App. 19, 53 S.W.3d 67 (2001); S. D. v. Dept. of Children & Family Servs., 805 So. 2d 10 (Fla. Dist. Ct. App. 2001). Clearly, if Florida terminates the Pruitts’ parental rights to Cheyenne’s five siblings, such action will heavily affect Cheyenne’s future. This factor alone presents a connection with Florida that dictates that Cheyenne’s interests should be protected in that termination proceeding.
I am mindful of Cox’s contention that Florida exercised no continuing jurisdiction regarding Cheyenne because no order or decree was pending involving custody of the child. Cox states, and the majority agrees, that the only order issued by the State of Florida was an order directing Cheyenne to be taken into the custody of the Florida DCFS at a time when Cheyenne had never been in Florida.
The question of Florida’s “continuing jurisdiction” under the PKPA and that state’s ongoing proceedings with respect to the Pruitt family form the crux of my disagreement with the majority. Section 9-19-102(4) of the UCCJEA defines a “child-custody proceeding, broadly, to mean a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue, and that the term includes a proceeding for divorce, guardianship, paternity, termination of parental rights, and protection from domestic violence.” (Emphasis added.) Here, the Florida court had jurisdiction of the Pruitts in a dependent-neglect and abuse case which also included a termination of the Pruitts’ parental rights; this Florida proceeding necessarily involved Cheyenne because her parents also lived in Florida and continued to be parties in the Florida court proceedings. Florida’s action is consistent with the purposes of the UCCJEA and the PKPA.
Before concluding, it is necessary to address a series of points made in the majority opinion. While those points appear clearly misdirected from the fundamental purposes of the UCCJEA and PKPA, I feel obliged to briefly discuss them.
First, the opinion suggests that Florida had no jurisdiction over Cheyenne because she was born in Arkansas, never lived in Florida, and Arkansas is Cheyenne’s home state. The opinion ignores the fact that Cheyenne’s mother and father are domiciliaries of Florida who, since 1999, have been involved in a custody and. termination-of-parental-rights proceeding in that State. Obviously, that Florida proceeding involves Cheyenne because, even under Arkansas’s long-settled law, Cheyenne is a domicile of Florida.6 See Minetree v. Minetree, 181 Ark. 111, 26 S.W.2d 101 (1930) (court recognized the general rule that an infant cannot of his own volition acquire a domicile; it is also a well-established rule that the domicile of every person at his birth is the domicile of the person on whom he is legally dependent, whether it is at the place of birth or elsewhere; and so the domicile of the father is in legal contemplation the domicile of his minor children); see also Luther L. McDougal, III, et al., American Conflicts Law, § 12, at 27 (5th ed. 2001) (when a legitimate child is born of a living father, its domicile is that of his father); Restatement (Second) of Conflicts of Law § 14 (1969) (the domicile of a legitimate child at birth is the domicile of its father at the time; on occasion, a child’s domicile of origin will be in a place where the child has never been); 25 Am. Jur. 2d Domicile § 11 (1996).7
Here, the record clearly reflects that both of Cheyenne’s parents live in Kissimmee, Florida, and because Cheyenne is an infant too young to establish her own domicile, Florida is her domicile. Given this legal contact with Florida, Florida undoubtedly has sufficient contacts and jurisdiction to decide Cheyenne’s fate and relationship with her parents. Although Arkansas’s DHS does not dispute Arkansas as being Cheyenne’s home state as defined under § 9-19-102(7) of the UCCJEA, Florida still has jurisdiction to determine the Pruitts’ parental and custody rights over Cheyenne. It is this type of conflicting situation that lends itself for resolution under a simultaneous proceeding analysis provided in § 9-19-206(a) and (b) of the UCCJEA, as discussed earlier in this opinion. Once again, while the majority opinion disavows forum non coveniens as a viable issue in this case because of its contention that the ongoing Florida proceeding has nothing to do with Cheyenne (but only involves the Pruitts’ other children), such disavowment is not supported by law or facts since the Florida court has jurisdiction over the entire Pruitt family, including Cheyenne.
The majority opinion takes issue with the Florida May 15, 2001, order and submits that order is not entitled to full faith and credit because that order was never registered in Arkansas under Ark. Code. Ann. § 9-19-305(a) (Repl. 2002).8 This statute was not raised or argued below, likely because that statute provides only that such a child-custody determination of another state may be registered in this state. In the instant case, the Arkansas probate court and Cox were well aware of the states’ respective orders issued by the Florida and Arkansas courts. Those orders were before the Arkansas probate court, which conducted hearings on those orders. In short, all parties fully availed themselves of due process by virtue of hearings on all issues. As has already been pointed out, both Cox and DHS were before the Arkansas probate court on May 17, 2001, and the parties’ conflicting orders were placed in issue and fully tried later. Again, both the Arkansas and Florida courts and parties were on notice that simultaneous proceedings were ongoing and should have been decided in accordance with UCCJEA provision § 9-19-206. It would be senseless and a waste of time for DHS to register the Florida court order in a separate proceeding when DHS filed the Florida court order with the Arkansas court on May 16 and 17, asking that court to give full faith and credit to the sister state’s order.
I also note that the majority, in several places, refers to the Florida court’s order as being “void.” This is not the case, however. In the Florida proceeding, the Pruitts and DCFS were parties in that proceeding that placed the Pruitts’ children in state custody, and the Pruitts failed to appeal from those determinations. They are thus bound by the Florida court’s orders. See Robert A. Leflar, American Conflicts Law, § 79 (9th ed. 1986). Cox, as a grandparent, has no greater right to challenge these orders than do the Pruitts. See Suster v. Arkansas Dept. of Human Servs, 314 Ark. 92, 858 S.W.2d 122 (1993). The Florida court order here clearly is entitled to full faith and credit.
The majority opinion also discusses its concern, under the circumstances of this case, that the Arkansas DHS may now decide what orders DHS will follow and what orders it will ignore. While the majority makes much of the Arkansas probate court’s finding that DHS had violated its May 16, 2001, order, neither DHS nor Cox relies on that finding in this appeal. The contempt issue is a collateral matter that simply is not a part of this appeal. Suffice it to say, DHS acts at its own peril if it willfully violates a court order, even one that may be voidable. This court has made it very clear that the fact that a decree or order is erroneous does not excuse disobedience on the part of those bound by its terms until the order is reversed. See Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001); Etoch v. State, 332 Ark. 83, 964 S.W.2d 798 (1998). However, whether DHS has acted in contempt should in no way affect the Florida court’s jurisdiction and authority to seek the recognition to which that court’s order is entitled under the UCCJEA or PKPA. Unfortunately, I believe DHS’s apparent decision to act contrary to the Arkansas court’s May 16 order has played an integral part in deciding Arkansas should retain jurisdiction over Cheyenne, and while I might agree that DHS acted improperly in those circumstances, this state should not retain jurisdiction because of those actions.
In sum, none of Cox’s points has merit, and I suggest that, by adopting Cox’s theories, this court is acting contrary to the purposes of the UCCJEA and PKPA. As for Mrs. Cox, she was a Florida domicile when the 1999 Florida proceeding commenced and only became an Arkansas resident immediately before the Arkansas proceeding was filed. If Cox had a strong will to serve as a custodial caretaker of any of the Pruitts’ children, she could, as she has done in the past, make that claim in the Florida court.
For the reasons stated above, I would reverse and remand.
Imber, J., joins this dissent.Administrative Order Number 4 — Verbatim Trial Record. Unless waived on the record by the parties, it shall be the duty of any circuit, chancery, or probate court to require that a verbatim record be made of all proceedings pertaining to any contested matter before it.
Arkansas originally adopted the Uniform Child Custody Jurisdiction Act, the UCCJA, Ark. Code Ann. § 9-13-201, et seq., in 1979; the UCCJA in Arkansas was repealed when the General Assembly enacted the .UCCJEA. See Act 668 of 1999, § 405.
Section 9-19-204 gives a state temporary emergency jurisdiction. In my view, the Arkansas DHS could have easily requested relief under this statute since the Pruitts were found to be unfit parents and Cox had conceded an inability to care for the Pruitt children.
No one questions whether Florida has a law that establishes jurisdiction substantially in accordance with Arkansas’s law, likely because Florida has also adopted the UCCJA. See Fla. Stat. Ann. § 61.1302, et seq.
There is some dispute as to whether Ruben Pruitt is the father of one of the five children, but that issue is of no importance to the issues raised in this appeal. It is clear that Cheyenne is a sister to all five siblings.
The majority makes reference to the fact that Cheyenne was conceived in Florida, and asserts that this “is of no impact” in the analysis of the situation. However, this analysis of domicile does not depend on the location of the infant’s conception, and it is thus not clear why the majority highlights this issue.
The majority opinion glosses over this longstanding law by saying the Arkansas case was rendered prior to the UCCJEA and PKPA. These Acts in no way supplant the rules of law dealing with fixing an infant’s domicile, and clearly can be harmonized with the UCCJEA’s simultaneous proceedings provisions when sister states are asserting jurisdiction in a custody case.
Section 9-19-305(a), in relevant part, provides that a child-custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement. The majority’s reliance on Stone v. Stone, 636 N.W.2d 594 (Minn. Ct. App. 2001), to support its argument about the registration of judgments is misplaced because, in that case, the question was simply a procedural matter of whether or not the mother had properly registered a foreign custody order in her new home state, and there was no question of an existing ongoing custody proceeding in a sister state, such as we have here.