Correct result, questionable rationale on multi-state child custody jurisdiction appeal

Posted Tuesday, May 5th, 2009 by Gregory Forman
Filed under Child Custody, Jurisprudence, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

In 2007 South Carolina substituted the Uniform Child Custody Jurisdiction Act (UCCJA) for the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). S.C. Code Ann. § 63-15-300, et seq.  The change was intended, in part, to correct a few loopholes in the power of courts of one state to take jurisdiction and modify another state’s child custody determinations.

One of these loopholes was the use of “emergency” jurisdiction powers.  Under the UCCJA a parent could invoke emergency jurisdiction and use the exercise of emergency jurisdiction to keep jurisdiction even after the emergency had passed.  The UCCJEA limits the exercise of emergency jurisdiction until the state that previously issued the child custody order or the child’s home state resumes the exercise of jurisdiction. § 63-15-336.

The other loophole was the jurisdiction to modify another state’s custody order when the non-custodial parent still lived in the issuing state.  Both the UCCJEA and UCCJA keep jurisdiction in the issuing state–even if a new state has become the child’s state of residence–so long as the child or the child’s parents have a significant connection with the issuing state and there is substantial evidence in the issuing state concerning the child’s care, protection, training, and personal relationships.  However under the UCCJA South Carolina could determine whether the issuing state still met this test, even if the other parent (typically the non-custodial parent) still lived in the issuing state.  Under the UCCJEA, if the non-custodial parent still lives in the issuing state that state must determine that it no longer has jurisdiction before South Carolina can exercise jurisdiction. §  63-15-334(1).  However if neither of the parents nor the child reside in the issuing state, South Carolina can decide whether to modify another state’s custody order without that state first declining continuing jurisdiction. § 63-15-334(2).

Before the UCCJEA closed this loophole, custodial parents could move from the issuing state to South Carolina and then ask South Carolina to modify the custody order, even if the non-custodial parent still lived in the issuing state.  This was incredibly unfair to the non-custodial parent and the issuing state.  The parent seeking to move jurisdiction away from the issuing state, at the inconvenience of the other parent, should be required to obtain the issuing state’s consent and not simply their new residential state’s consent, before changing jurisdiction.  Basic principals of comity–the doctrine that one state should respect another state’s orders–are violated whenever one state takes away child custody jurisdiction from the issuing state when a parent or child still live in the issuing state.  In such circumstances comity is violated because the issuing state might still believe its courts have an interest in protecting its residents in such child custody determinations.  Now, under the UCCJEA, the custodial parent must get the issuing state to decline jurisdiction before asking South Carolina to accept jurisdiction when the non-custodial parent lives in the issuing state.  This accords with the principles of comity.

An April 27, 2009 decision from the South Carolina Court of Appeals in the case of Russell v. Cox, 383 S.C. 215, 678 S.E.2d 460 (Ct.App. 2009) analyzed whether the family court properly decided to decline jurisdiction to modify a Georgia custody order when the Father claimed to still be a Georgia resident.  Mother filed an action in the South Carolina Family Court to modify the Georgia decree claiming that Father was no longer a Georgia resident.  Father asked the family court to dismiss the case, claiming he was still a Georgia resident.  Mother then asked the family court to decide whether Father remained a Georgia resident and, even if he was, to accept jurisdiction by finding that South Carolina was a more convenient forum.

Both the family court and the Court of Appeals declined to accept jurisdiction.  However both courts based their decision upon a determination of where Father resided, with both courts determining that Father remained a Georgia resident. While such a determination is authorized under § 63-15-334(2), the action of a South Carolina court deciding whether someone is a Georgia resident in order to determine whether to accept jurisdiction to modify a Georgia custody order creates the comity problems that the UCCJEA was designed, in part, to remedy.  When there is no dispute over residency, it does not violate principles of comity for South Carolina to decide whether it can invoke jurisdiction.  However, when a parent claims to be a resident of the issuing state, under principles of comity it should be the issuing state and not South Carolina that should decide the issue of residency.  The family court and the Court of Appeals could have respected comity and reached the same result had they simply decided to defer the question of Father’s residency to the Georgia courts.  Instead they opened a loophole in the exercise of modification jurisdiction.

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