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GEORGIA CODE (Last Updated: August 20, 2013) |
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Title 19. DOMESTIC RELATIONS |
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Chapter 9. CHILD CUSTODY PROCEEDINGS |
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Article 3. UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT |
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Part 2. JURISDICTION |
| § 19-9-61. Jurisdiction requirements for initial child custody determinations; physical presence alone insufficient |
| § 19-9-62. Prerequisites for termination of exclusive, continuing jurisdiction |
| § 19-9-63. Prerequisites for modifying custody determination from foreign court |
| § 19-9-64. Temporary emergency jurisdiction; continuing effect; communicating with other courts |
| § 19-9-65. Notice required; intervention |
| § 19-9-66. Procedure where proceedings pending in another state |
| § 19-9-67. Finding of inconvenient forum; conditions |
| § 19-9-68. Wrongfully obtained jurisdiction; actions to prevent repetition of unjustifiable conduct; expenses |
| § 19-9-69. Information required as part of pleading or affidavit; continuing duty; sealing of information; children residing in family violence shelters |
| § 19-9-70. Requiring appearance for in state and out of state residents; other court orders |
REFS & ANNOS
TITLE 19 Chapter 9 Article 3 Part 2 NOTE
LAW REVIEWS. --For article, "Domestic Relations Law," see 53 Mercer L. Rev. 265 (2001).
JUDICIAL DECISIONS
EDITOR'S NOTES. --Some of the decisions cited below were decided under the Uniform Child Custody Jurisdiction Act, former Code 1933, §§ 74-501 through 74-525, subsequently codified as §§ 19-9-40 through 19-9-64.
WHERE CUSTODY PROCEEDINGS SHOULD TAKE PLACE. --Custody proceedings should take place in state with which child and family have closest connections. Graham v. Hajosy, 159 Ga. App. 466, 283 S.E.2d 683 (1981) (decided under former Uniform Child Custody Jurisdiction Act).
JURISDICTION UNDER PARENTAL KIDNAPPING PREVENTION ACT (28 U.S.C. § 1738A). --In a proceeding to modify child custody provisions of a foreign divorce decree, even though Georgia was the home state of the minor children, the trial court erred in modifying the decree where, pursuant to the Parental Kidnapping Prevention Act (28 U.S.C. § 1738A), it failed to address whether the court that originally entered the decree had lost or declined to exercise jurisdiction. Henderson v. Justice, 223 Ga. App. 591, 478 S.E.2d 434 (1996) (decided under former Uniform Child Custody Jurisdiction Act).
In a proceeding to modify visitation rights of the father, a Louisiana resident, even though the trial court clearly had jurisdiction to modify the Louisiana judgment because Georgia was the children's home state at the time the modification petition was filed, the court erred in issuing a modification order because Louisiana retained continuing jurisdiction over the case. Bonar v. Bonar, 246 Ga. App. 11, 539 S.E.2d 521 (2000) (decided under former Uniform Child Custody Jurisdiction Act).
JURISDICTION UNDER FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDER ACT. --Because a court of this state has continuing, exclusive jurisdiction over the last child support order entered consistent with the Full Faith and Credit for Child Support Order Act, 28 U.S.C. § 1738B, the trial court erred by declining to exercise jurisdiction over appellee's petition to modify child support. Early v. Early, 269 Ga. 415, 499 S.E.2d 329 (1998) (decided under former Uniform Child Custody Jurisdiction Act).
JURISDICTIONAL STANDARDS OF THIS ARTICLE. --Jurisdictional provisions of the former Uniform Child Custody Jurisdiction Act do not apply in the international arena so as to confer jurisdiction upon an international tribunal or limit the exercise of otherwise proper jurisdiction in the state because of pending international proceedings. Goldstein v. Goldstein, 229 Ga. App. 862, 494 S.E.2d 745 (1997) (decided under former Uniform Child Custody Jurisdiction Act).
CONSTRUED WITH § 9-10-91(5). --Jurisdiction for modification of child custody matters, which include visitation, is in the home state of the child. Former § 9-10-91(5), the "domestic-relations long arm statute", applies by its own terms only to actions involving alimony, child support, and division of property. Kemp v. Sharp, 261 Ga. 600, 409 S.E.2d 204 (1991) (decided under former Uniform Child Custody Jurisdiction Act).
MINIMUM NEXUS BETWEEN COURT AND CHILD THAT MUST EXIST before court's award of child's custody should carry any authority is that court should be in position to adequately inform itself regarding needs and desires of child, and of what is in child's best interest. Goldfarb v. Goldfarb, 246 Ga. 24, 268 S.E.2d 648 (1980) (decided under former Uniform Child Custody Jurisdiction Act).
INTERESTED STATE WITH REQUISITE NEXUS MAY DETERMINE CUSTODY. --Former § 19-9-43 allowed interested state with requisite nexus with subject of child custody suit to hear action and make determination. Goldfarb v. Goldfarb, 246 Ga. 24, 268 S.E.2d 648 (1980) (decided under former Uniform Child Custody Jurisdiction Act).
GEORGIA COURTS WILL RECOGNIZE AND ENFORCE OTHER STATE'S MODIFICATIONS in accordance with former Uniform Child Custody and Jurisdiction Act. Yearta v. Scroggins, 245 Ga. 831, 268 S.E.2d 151 (1980) (decided under former Uniform Child Custody Jurisdiction Act).
ENFORCEMENT OF CUSTODY PROVISIONS OF GEORGIA DIVORCE JUDGMENT. --Georgia court which issued a divorce judgment that has not been modified by a court of another state with jurisdiction to do so may hear a Georgia-resident, non-custodial parent's allegations of contumacious conduct leveled against the nonresident custodial parent; a Georgia court has the statutory power to compel obedience to its judgments, as well as the inherent power to enforce its orders through contempt proceedings, and the Uniform Child Custody Jurisdiction Act does not provide the exclusive means by which a party may seek enforcement of the custody provisions of a Georgia judgment. Dyer v. Surratt, 266 Ga. 220, 466 S.E.2d 584 (1996) (decided under former Uniform Child Custody Jurisdiction Act).
PARENT WISHING TO CHANGE CUSTODY MUST PROCEED IN PROPER JURISDICTION. --If it is in child's best interest that child custody be changed, noncustodial parent must, instead of snatching child, seek change of custody where jurisdiction lies. Etzion v. Evans, 247 Ga. 390, 276 S.E.2d 577 (1981) (decided under former Uniform Child Custody Jurisdiction Act).
Florida court's award of custody to the father was not entitled to recognition in Georgia since the Florida court assumed jurisdiction over issues of child custody in disregard of the requirement imposed by former § 19-9-46(c) and since Georgia was the home state of the children at the time of the Florida court's action. Thompson v. Thompson, 241 Ga. App. 616, 526 S.E.2d 576 (1999) (decided under former Uniform Child Custody Jurisdiction Act).
WHEN GEORGIA COURTS WILL RELITIGATE CUSTODY. --Courts of Georgia will refuse to relitigate custody except where legal custodian resides. Yearta v. Scroggins, 245 Ga. 831, 268 S.E.2d 151 (1980) (decided under former Uniform Child Custody Jurisdiction Act).
WHEN GEORGIA COURTS WILL NOT RELITIGATE CUSTODY. --As a matter of public policy, Georgia courts refuse to provide forum in Georgia for relitigating custody when noncustodial parent resident in Georgia has improperly removed child from physical custody of custodial parent who resides in another state. Bishop v. Bishop, 247 Ga. 56, 273 S.E.2d 394 (1981); Etzion v. Evans, 247 Ga. 390, 276 S.E.2d 577 (1981) (decided under former Uniform Child Custody Jurisdiction Act).
EFFECT OF MODIFICATION PROCEEDING IN ANOTHER STATE UPON GEORGIA JURISDICTION. --Former Uniform Child Custody Jurisdiction Act did not destroy the jurisdiction of a Georgia court to hear contempt proceedings filed by a Georgia-resident, noncustodial mother against an Ohio-resident, custodial father for his breach of the visitation provisions of Georgia court's child custody decree solely because an Ohio court previously had accepted jurisdiction of visitation modification proceedings filed by father where the Ohio court had not entered an order modifying the visitation provisions of the Georgia court's decree. Daily v. Dombroski, 250 Ga. 236, 297 S.E.2d 246 (1982) (decided under former Uniform Child Custody Jurisdiction Act).
PETITION FOR CONTEMPT FOR DENIAL OF VISITATION RIGHTS clearly came within the purview of former Uniform Child Custody Jurisdiction Act. Paul v. Paul, 184 Ga. App. 217, 361 S.E.2d 221 (1987) (decided under former Uniform Child Custody Jurisdiction Act).
RESIDENT PARENT ILLEGALLY RETAINING CUSTODY. --Where the mother, a Florida resident, was the custodial parent, and the father, a Georgia resident, illegally retained custody of the minor child after a visitation period granted by the custodial parent, the trial court should have refused jurisdiction pursuant to the provisions providing that a court of this state, competent to decide child custody, has jurisdiction to make such determination only if Georgia is the home state of the child at the time of commencement of the proceeding, or has been the child's home state within six months before commencement of the proceeding. Craighead v. Davis, 162 Ga. App. 145, 290 S.E.2d 358 (1982) (decided under former Uniform Child Custody Jurisdiction Act).
"HOME STATE," for all purposes which the former Uniform Child Custody Jurisdiction Act was designed to govern, did not mean the residence or domicile of the parent having legal custody. Rather, "home state," for purposes of former § 19-9-43, means the place where the child lived or had recently lived and where the child would presumably still be living had the child not been surreptitiously removed therefrom. Harper v. Landers, 180 Ga. App. 154, 348 S.E.2d 698 (1986) (decided under former Uniform Child Custody Jurisdiction Act).
Facts of the instant case fit squarely within paragraphs (a)(1) and (2) of former § 19-9-43, where it was undisputed that the children lived in Paulding County, Georgia, with their mother and their grandmother, who both during her daughter's times of disability and after her death "acted as a parent" to the minor children, giving them emotional and financial support and it was also undisputed that the grandmother's petition was filed July 30, 1985, and that the father was personally served in Melbourne, Florida, on September 21, 1985, both dates being less than six months after May 24, 1985, when the children were removed from Georgia. Thus, at the initiation of the action, Georgia was the children's "home state," as defined in the controlling statute, former § 19-9-42(5). Harper v. Landers, 180 Ga. App. 154, 348 S.E.2d 698 (1986) (decided under former Uniform Child Custody Jurisdiction Act).
Assertion that Georgia did not have jurisdiction because Ohio was the home state of all the parties' children at the time of the divorce, and continued to be the home state of the two older children of the parties, was not pertinent to the question since the term "home state" refers to the home of the child for at least six months prior to the action. Gouse v. Wilson, 207 Ga. App. 574, 428 S.E.2d 571 (1993), aff'd, 263 Ga. 887, 441 S.E.2d 57 (1994) (decided under former Uniform Child Custody Jurisdiction Act).
Where a child had resided in Georgia with the custodial parent for a number of years giving the Georgia court authority to exercise home state jurisdiction, "appropriate forum" jurisdiction was not conferred upon the Tennessee court, such as would preclude the Georgia court from exercising jurisdiction to modify the custody decree ordered under the Tennessee divorce decree. Mulle v. Yount, 211 Ga. App. 584, 440 S.E.2d 210 (1993) (decided under former Uniform Child Custody Jurisdiction Act).
"HOME STATE" MEANS PHYSICAL PRESENCE WITHOUT REGARD TO LEGAL RESIDENCE; thus, where mother lived in Illinois and the child lived with her there continuously from at least May 1979, until December 1980, except for a two-week absence to go to Georgia in July 1980, where she married her present husband, Illinois was the child's "home state," and since father commenced custody proceeding in May 1981, less than six months after mother removed child to Georgia in December 1980, Illinois trial court had jurisdiction to determine custody of child. Brenner v. Cavin, 163 Ga. App. 694, 295 S.E.2d 135 (1982) (decided under former Uniform Child Custody Jurisdiction Act).
ATTEMPT TO PREDETERMINE "HOME STATE." --Jurisdiction of interstate custody disputes is controlled in this state by the former Uniform Child Custody Jurisdiction Act (UCCJA). An attempt to predetermine the "home state" is a circumvention of the UCCJA, and is an attempt to deprive this state of its lawful jurisdiction of the citizens according to the Act. Gouse v. Wilson, 207 Ga. App. 574, 428 S.E.2d 571 (1993) (decided under former Uniform Child Custody Jurisdiction Act).
JURISDICTION WHERE ANOTHER STATE HAS JURISDICTION. --When it appears that another state has jurisdiction of case under paragraph (a)(1) or (a)(2) of former § 19-9-43, Georgia courts do not have such jurisdiction unless the children are abandoned or an emergency exists which would justify assumption of jurisdiction by this state. Douse v. Douse, 157 Ga. App. 524, 277 S.E.2d 807 (1981) (decided under former Uniform Child Custody Jurisdiction Act).
ATTEMPT TO RETAIN JURISDICTION BY STIPULATION IN DECREE. --An Ohio court's attempt to retain jurisdiction of the matter of child custody by so stipulating in its divorce decree was a nullity, even though it is based on the agreement of the parties. Gouse v. Wilson, 207 Ga. App. 574, 428 S.E.2d 571 (1993) (decided under former Uniform Child Custody Jurisdiction Act).
DETERMINING JURISDICTION WHEN EMERGENCY IS CLAIMED. --When a petitioner seeking modification of an out-of-state custody decree alleges that the child is in need of emergency protection, the trial court was authorized under subparagraph (a)(3)(B) of former § 19-9-43 to take temporary jurisdiction and even to make an award of temporary custody. Under the relevant statutory provisions, however, the court is under a duty before proceeding to modify an out-of-state decree to ascertain whether the allegations contained in the petition are valid, and whether the petitioner has complied with the statutory requirements and is entitled to bring further proceedings in the Georgia courts. Osgood v. Dent, 167 Ga. App. 406, 306 S.E.2d 698 (1983); Galvez v. Galvez, 221 Ga. App. 644, 472 S.E.2d 492 (1996) (decided under former Uniform Child Custody Jurisdiction Act).
Trial court lacked jurisdiction to hear an action for modification brought by father, where the mother had legal custody and lived with the child in a different state, and the child was temporarily visiting father in Georgia; findings of the court that abuse of the child may have occurred and that the mother's nonmarital cohabitation may have been detrimental to the child were not sufficient to support the exercise of emergency jurisdiction. In re M.M., 222 Ga. App. 313, 474 S.E.2d 53 (1996) (decided under former Uniform Child Custody Jurisdiction Act).
Purpose of the emergency exception to home state jurisdiction is to allow an appropriate non-home state court to exercise jurisdiction where the circumstances and well-being of the child demand immediate action; thus, because no true emergency existed, the Georgia court properly refused to take jurisdiction in a child custody case involving a child who resided in Virginia. Rozier v. Berto, 230 Ga. App. 427, 496 S.E.2d 544 (1998) (decided under former Uniform Child Custody Jurisdiction Act).
SPECIFIC OBJECTION TO JURISDICTION. --When the home state of the child was not Georgia and the mother as custodial parent specifically objected to jurisdiction over her person and the subject matter without making an appearance in court, the state superior court had no jurisdiction over this custody determination. Baker v. Ashburn, 179 Ga. App. 757, 347 S.E.2d 660, aff'd, 256 Ga. 507, 350 S.E.2d 437 (1986) (decided under former Uniform Child Custody Jurisdiction Act).
COURT HAD JURISDICTION of the child and the issue of the child's custody since the child had continually lived in Georgia and this was the child's home state. Gregg v. Barnes, 203 Ga. App. 549, 417 S.E.2d 206, cert. denied, 203 Ga. App. 906, 417 S.E.2d 206 (1992) (decided under former Uniform Child Custody Jurisdiction Act).
Because the only reason the child had a growing connection with another state was that the father moved the child there without notice, jurisdiction in Georgia was properly based on findings that it was in the best interest of the child, the mother had a significant connection with the state, and substantial evidence concerning the child's present and future needs was available in Georgia. Holt v. Leiter, 232 Ga. App. 376, 501 S.E.2d 879 (1998) (decided under former Uniform Child Custody Jurisdiction Act).
Georgia court had jurisdiction of noncustodial father's action for modification of custody where no other state had jurisdiction as the "home state" of the children. Mock v. Smith, 233 Ga. App. 36, 503 S.E.2d 319 (1998) (decided under former Uniform Child Custody Jurisdiction Act).
Georgia court could assume jurisdiction pursuant to paragraph (a)(2) of former § 19-9-43 because substantial evidence was available in Georgia bearing on the children's past and future activities, relationships, and care; in addition, jurisdiction could be assumed pursuant to paragraph (a)(4) of that section as no other state had jurisdiction. Wylie v. Blatchley, 237 Ga. App. 563, 515 S.E.2d 855 (1999) (decided under former Uniform Child Custody Jurisdiction Act).
TRIAL COURT LACKED JURISDICTION over a resident noncustodial father's action against a nonresident custodial mother seeking to modify visitation rights and to hold the mother in contempt of the visitation provisions of a Georgia decree since personal service had not been made on the mother in Georgia. Ashburn v. Baker, 256 Ga. 507, 350 S.E.2d 437 (1986); Ruckstuhl v. Corley, 218 Ga. App. 660, 462 S.E.2d 795 (1995) (decided under former Uniform Child Custody Jurisdiction Act).
Where the mother removed the minor child of the parties from Georgia to the Federal Republic of Germany when there was in effect no court order providing for custody of the child and she subsequently obtained from a German court a decree awarding custody to her, and the father later filed a complaint in a Georgia superior court and attempted to serve the mother in Germany by publication, the Georgia court was without jurisdiction to award custody of the child to the father. Richardson v. Richardson, 257 Ga. 101, 355 S.E.2d 664 (1987) (decided under former Uniform Child Custody Jurisdiction Act).
In an action by a noncustodial parent, filed in Georgia, for modification of the visitation provisions of the divorce decree, the assertion by the nonresident custodial parent of a counterclaim for modification of support did not constitute a waiver of the custodial parent's right to insist on litigating custody matters in Texas, the home state of the parties' child. Kemp v. Sharp, 261 Ga. 600, 409 S.E.2d 204 (1991) (decided under former Uniform Child Custody Jurisdiction Act).
Trial court lacked jurisdiction to hear an action for modification of custody brought by father, where the mother had legal custody and lived with the child in a different state, the child was temporarily visiting the father in Georgia, there was no extreme emergency authorizing the conduct of the father in denying custody to the mother, and there was not substantial evidence otherwise sufficient to vest jurisdiction in the Georgia court. Lightfoot v. Lightfoot, 210 Ga. App. 400, 436 S.E.2d 700 (1993) (decided under former Uniform Child Custody Jurisdiction Act).
Even though the Tennessee court had declined to exercise the court's jurisdiction over a custody matter, the Georgia court did not gain jurisdiction because, under the former Uniform Child Custody and Jurisdiction Act, jurisdiction could not be conferred by stipulation, agreement, or consent of the parties or another court. Williams v. Goss, 211 Ga. App. 195, 438 S.E.2d 670 (1993) (decided under former Uniform Child Custody Jurisdiction Act).
Where Tennessee was the house state of a minor child, the fact that the child indicated a preference to reside with his father who lived in Georgia did not create a significant connection between the child and the state where the parent resided so as to confer jurisdiction of custody proceedings in the Georgia courts. Williams v. Goss, 211 Ga. App. 195, 438 S.E.2d 670 (1993) (decided under former Uniform Child Custody Jurisdiction Act).
Trial court lacked jurisdiction to hear an action for modification of custody brought by the father because the father did not have standing until more than six months after the date of the filing and Florida was the state with the closest connections to the child and family. Mezquita v. Campbell, 238 Ga. App. 396, 519 S.E.2d 27 (1999) (decided under former Uniform Child Custody Jurisdiction Act).
PURPOSE. --Former § 19-9-47 was not a separate grant of jurisdiction over interstate child custody proceedings, but established a discretionary abstention doctrine. Mulle v. Yount, 211 Ga. App. 584, 440 S.E.2d 210 (1993) (decided under former § 19-9-47).
LIMITED JURISDICTION. --When the trial court held that it did not have jurisdiction over child custody because of the pendency of an appeal in another state, custody ceased to be a contestable issue, and the court was not precluded from addressing issues over which the court had jurisdiction, including divorce. Norowski v. Norowski, 267 Ga. 841, 483 S.E.2d 577 (1997) (decided under former § 19-9-47).
While a trial court had a limited grant of authority under subsection (f) of former § 19-9-47 to dismiss a custody proceeding on the ground of forum non conveniens, it could not dismiss the divorce proceeding as well. Holtsclaw v. Holtsclaw, 269 Ga. 163, 496 S.E.2d 262 (1998); Patterson v. Patterson, 271 Ga. 306, 519 S.E.2d 438 (1999) (decided under former § 19-9-47).
INQUIRY REQUIRED. --Trial court erred in dismissing a child custody proceeding without an inquiry into whether the law of the other state involved in the case would allow a court of that state to exercise jurisdiction. Patterson v. Patterson, 271 Ga. 306, 519 S.E.2d 438 (1999) (decided under former § 19-9-47).
In father's action seeking modification of a child custody order, the trial court properly applied the Uniform Child Custody Jurisdiction Act (UCCJA) to resolve the parties' dispute because the UCCJA was the law in effect when the father filed his petition seeking modification of a child custody order, and the trial court did not err by concluding that the father's petition under former O.C.G.A. § 19-9-43(a)(1)(B) was timely because O.C.G.A. § 1-3-1(d)(3) extended the six-month period the father had to file the petition from a Saturday to the following Monday. Parke v. Fant, 260 Ga. App. 84, 578 S.E.2d 896 (2003).
RESEARCH REFERENCES
AM. JUR. 2D. --24A Am. Jur. 2d, Divorce and Separation, §§ 868, 874, 870, 878. 39 Am. Jur. 2d, Habeas Corpus, §§ 95 et seq., 107.
C.J.S. --27C C.J.S., Divorce, §§ 611, 612, 618, 629, 635. 39 C.J.S., Habeas Corpus, § 241 et seq. 43 C.J.S., Infants, §§ 10 et seq. 67A C.J.S., Parent and Child, § 99 et seq.
U.L.A. --Uniform Child Custody Jurisdiction Act (U.L.A.) § 3.
ALR. --Removal of child from state pending proceedings for custody as defeating jurisdiction to award custody, 171 ALR 1405.
Jurisdiction of court to award custody of child domiciled in state but physically outside it, 9 ALR2d 434.
Child custody: when does state that issued previous custody determination have continuing jurisdiction under Uniform Child Custody Jurisdiction Act (UCCJA) or Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A, 83 ALR4th 742.
Significant connection jurisdiction of court under § 3(a)(2) of the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A(c)(2)(B), 5 ALR5th 550; 67 ALR5th 1.
Abandonment and emergency jurisdiction of court under § 3(a)(3) of the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A(c)(2)(C), 5 ALR5th 788.
Home state jurisdiction of court under § 3(a)(1) of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A(c)(2)(A), 6 ALR5th 1.
Default jurisdiction of court under § 3(a)(4) of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A(c)(2)(D), 6 ALR5th 69.
Home state jurisdiction of court to modify foreign child custody decree under §§ 3(a)(1) and 14(a)(2) of Uniform Child Custody Jurisdiction Act (UCCJA) and Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. §§ 1738A(c)(2)(A) and 1738A(f)(1), 72 ALR5th 249.
Declining jurisdiction to modify prior child custody decree under § 14(a)(1) of Uniform Child Custody Jurisdiction Act (UCCJA) and Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. § 1738A(f)(2), 73 ALR5th 185.
Abandonment jurisdiction of court under §§ 3(a)(3)(i) and 14(a) of Uniform Child Custody Jurisdiction Act and Parental Kidnapping Prevention Act, 28 USCA §§ 1738A(c)(2)(C)(i) and 1738A(f), notwithstanding existence of prior valid custody decree rendered by second state, 78 ALR5th 465.
Emergency jurisdiction of court under §§ 3(a)(3)(ii) and 14(a) of Uniform Child Custody Jurisdiction Act and Parental Kidnapping Prevention Act, 28 USCA §§ 1738A(c)(2)(C)(ii) and 1738A(f), to protect interests of child notwithstanding existence of prior, valid custody decree rendered by another state, 80 ALR5th 117.
JUDICIAL DECISIONS
EDITOR'S NOTES. --Some of the decisions cited below were decided under the Uniform Child Custody Jurisdiction Act, former Code 1933, §§ 74-501 through 74-525, subsequently codified as §§ 19-9-40 through 19-9-64.
WHERE CUSTODY PROCEEDINGS SHOULD TAKE PLACE. --Custody proceedings should take place in state with which child and family have closest connections. Graham v. Hajosy, 159 Ga. App. 466, 283 S.E.2d 683 (1981) (decided under former Uniform Child Custody Jurisdiction Act).
JURISDICTION UNDER PARENTAL KIDNAPPING PREVENTION ACT (28 U.S.C. § 1738A). --In a proceeding to modify child custody provisions of a foreign divorce decree, even though Georgia was the home state of the minor children, the trial court erred in modifying the decree where, pursuant to the Parental Kidnapping Prevention Act (28 U.S.C. § 1738A), it failed to address whether the court that originally entered the decree had lost or declined to exercise jurisdiction. Henderson v. Justice, 223 Ga. App. 591, 478 S.E.2d 434 (1996) (decided under former Uniform Child Custody Jurisdiction Act).
In a proceeding to modify visitation rights of the father, a Louisiana resident, even though the trial court clearly had jurisdiction to modify the Louisiana judgment because Georgia was the children's home state at the time the modification petition was filed, the court erred in issuing a modification order because Louisiana retained continuing jurisdiction over the case. Bonar v. Bonar, 246 Ga. App. 11, 539 S.E.2d 521 (2000) (decided under former Uniform Child Custody Jurisdiction Act).
JURISDICTION UNDER FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDER ACT. --Because a court of this state has continuing, exclusive jurisdiction over the last child support order entered consistent with the Full Faith and Credit for Child Support Order Act, 28 U.S.C. § 1738B, the trial court erred by declining to exercise jurisdiction over appellee's petition to modify child support. Early v. Early, 269 Ga. 415, 499 S.E.2d 329 (1998) (decided under former Uniform Child Custody Jurisdiction Act).
JURISDICTIONAL STANDARDS OF THIS ARTICLE. --Jurisdictional provisions of the former Uniform Child Custody Jurisdiction Act do not apply in the international arena so as to confer jurisdiction upon an international tribunal or limit the exercise of otherwise proper jurisdiction in the state because of pending international proceedings. Goldstein v. Goldstein, 229 Ga. App. 862, 494 S.E.2d 745 (1997) (decided under former Uniform Child Custody Jurisdiction Act).
CONSTRUED WITH § 9-10-91(5). --Jurisdiction for modification of child custody matters, which include visitation, is in the home state of the child. Former § 9-10-91(5), the "domestic-relations long arm statute", applies by its own terms only to actions involving alimony, child support, and division of property. Kemp v. Sharp, 261 Ga. 600, 409 S.E.2d 204 (1991) (decided under former Uniform Child Custody Jurisdiction Act).
MINIMUM NEXUS BETWEEN COURT AND CHILD THAT MUST EXIST before court's award of child's custody should carry any authority is that court should be in position to adequately inform itself regarding needs and desires of child, and of what is in child's best interest. Goldfarb v. Goldfarb, 246 Ga. 24, 268 S.E.2d 648 (1980) (decided under former Uniform Child Custody Jurisdiction Act).
INTERESTED STATE WITH REQUISITE NEXUS MAY DETERMINE CUSTODY. --Former § 19-9-43 allowed interested state with requisite nexus with subject of child custody suit to hear action and make determination. Goldfarb v. Goldfarb, 246 Ga. 24, 268 S.E.2d 648 (1980) (decided under former Uniform Child Custody Jurisdiction Act).
GEORGIA COURTS WILL RECOGNIZE AND ENFORCE OTHER STATE'S MODIFICATIONS in accordance with former Uniform Child Custody and Jurisdiction Act. Yearta v. Scroggins, 245 Ga. 831, 268 S.E.2d 151 (1980) (decided under former Uniform Child Custody Jurisdiction Act).
ENFORCEMENT OF CUSTODY PROVISIONS OF GEORGIA DIVORCE JUDGMENT. --Georgia court which issued a divorce judgment that has not been modified by a court of another state with jurisdiction to do so may hear a Georgia-resident, non-custodial parent's allegations of contumacious conduct leveled against the nonresident custodial parent; a Georgia court has the statutory power to compel obedience to its judgments, as well as the inherent power to enforce its orders through contempt proceedings, and the Uniform Child Custody Jurisdiction Act does not provide the exclusive means by which a party may seek enforcement of the custody provisions of a Georgia judgment. Dyer v. Surratt, 266 Ga. 220, 466 S.E.2d 584 (1996) (decided under former Uniform Child Custody Jurisdiction Act).
PARENT WISHING TO CHANGE CUSTODY MUST PROCEED IN PROPER JURISDICTION. --If it is in child's best interest that child custody be changed, noncustodial parent must, instead of snatching child, seek change of custody where jurisdiction lies. Etzion v. Evans, 247 Ga. 390, 276 S.E.2d 577 (1981) (decided under former Uniform Child Custody Jurisdiction Act).
Florida court's award of custody to the father was not entitled to recognition in Georgia since the Florida court assumed jurisdiction over issues of child custody in disregard of the requirement imposed by former § 19-9-46(c) and since Georgia was the home state of the children at the time of the Florida court's action. Thompson v. Thompson, 241 Ga. App. 616, 526 S.E.2d 576 (1999) (decided under former Uniform Child Custody Jurisdiction Act).
WHEN GEORGIA COURTS WILL RELITIGATE CUSTODY. --Courts of Georgia will refuse to relitigate custody except where legal custodian resides. Yearta v. Scroggins, 245 Ga. 831, 268 S.E.2d 151 (1980) (decided under former Uniform Child Custody Jurisdiction Act).
WHEN GEORGIA COURTS WILL NOT RELITIGATE CUSTODY. --As a matter of public policy, Georgia courts refuse to provide forum in Georgia for relitigating custody when noncustodial parent resident in Georgia has improperly removed child from physical custody of custodial parent who resides in another state. Bishop v. Bishop, 247 Ga. 56, 273 S.E.2d 394 (1981); Etzion v. Evans, 247 Ga. 390, 276 S.E.2d 577 (1981) (decided under former Uniform Child Custody Jurisdiction Act).
EFFECT OF MODIFICATION PROCEEDING IN ANOTHER STATE UPON GEORGIA JURISDICTION. --Former Uniform Child Custody Jurisdiction Act did not destroy the jurisdiction of a Georgia court to hear contempt proceedings filed by a Georgia-resident, noncustodial mother against an Ohio-resident, custodial father for his breach of the visitation provisions of Georgia court's child custody decree solely because an Ohio court previously had accepted jurisdiction of visitation modification proceedings filed by father where the Ohio court had not entered an order modifying the visitation provisions of the Georgia court's decree. Daily v. Dombroski, 250 Ga. 236, 297 S.E.2d 246 (1982) (decided under former Uniform Child Custody Jurisdiction Act).
PETITION FOR CONTEMPT FOR DENIAL OF VISITATION RIGHTS clearly came within the purview of former Uniform Child Custody Jurisdiction Act. Paul v. Paul, 184 Ga. App. 217, 361 S.E.2d 221 (1987) (decided under former Uniform Child Custody Jurisdiction Act).
RESIDENT PARENT ILLEGALLY RETAINING CUSTODY. --Where the mother, a Florida resident, was the custodial parent, and the father, a Georgia resident, illegally retained custody of the minor child after a visitation period granted by the custodial parent, the trial court should have refused jurisdiction pursuant to the provisions providing that a court of this state, competent to decide child custody, has jurisdiction to make such determination only if Georgia is the home state of the child at the time of commencement of the proceeding, or has been the child's home state within six months before commencement of the proceeding. Craighead v. Davis, 162 Ga. App. 145, 290 S.E.2d 358 (1982) (decided under former Uniform Child Custody Jurisdiction Act).
"HOME STATE," for all purposes which the former Uniform Child Custody Jurisdiction Act was designed to govern, did not mean the residence or domicile of the parent having legal custody. Rather, "home state," for purposes of former § 19-9-43, means the place where the child lived or had recently lived and where the child would presumably still be living had the child not been surreptitiously removed therefrom. Harper v. Landers, 180 Ga. App. 154, 348 S.E.2d 698 (1986) (decided under former Uniform Child Custody Jurisdiction Act).
Facts of the instant case fit squarely within paragraphs (a)(1) and (2) of former § 19-9-43, where it was undisputed that the children lived in Paulding County, Georgia, with their mother and their grandmother, who both during her daughter's times of disability and after her death "acted as a parent" to the minor children, giving them emotional and financial support and it was also undisputed that the grandmother's petition was filed July 30, 1985, and that the father was personally served in Melbourne, Florida, on September 21, 1985, both dates being less than six months after May 24, 1985, when the children were removed from Georgia. Thus, at the initiation of the action, Georgia was the children's "home state," as defined in the controlling statute, former § 19-9-42(5). Harper v. Landers, 180 Ga. App. 154, 348 S.E.2d 698 (1986) (decided under former Uniform Child Custody Jurisdiction Act).
Assertion that Georgia did not have jurisdiction because Ohio was the home state of all the parties' children at the time of the divorce, and continued to be the home state of the two older children of the parties, was not pertinent to the question since the term "home state" refers to the home of the child for at least six months prior to the action. Gouse v. Wilson, 207 Ga. App. 574, 428 S.E.2d 571 (1993), aff'd, 263 Ga. 887, 441 S.E.2d 57 (1994) (decided under former Uniform Child Custody Jurisdiction Act).
Where a child had resided in Georgia with the custodial parent for a number of years giving the Georgia court authority to exercise home state jurisdiction, "appropriate forum" jurisdiction was not conferred upon the Tennessee court, such as would preclude the Georgia court from exercising jurisdiction to modify the custody decree ordered under the Tennessee divorce decree. Mulle v. Yount, 211 Ga. App. 584, 440 S.E.2d 210 (1993) (decided under former Uniform Child Custody Jurisdiction Act).
"HOME STATE" MEANS PHYSICAL PRESENCE WITHOUT REGARD TO LEGAL RESIDENCE; thus, where mother lived in Illinois and the child lived with her there continuously from at least May 1979, until December 1980, except for a two-week absence to go to Georgia in July 1980, where she married her present husband, Illinois was the child's "home state," and since father commenced custody proceeding in May 1981, less than six months after mother removed child to Georgia in December 1980, Illinois trial court had jurisdiction to determine custody of child. Brenner v. Cavin, 163 Ga. App. 694, 295 S.E.2d 135 (1982) (decided under former Uniform Child Custody Jurisdiction Act).
ATTEMPT TO PREDETERMINE "HOME STATE." --Jurisdiction of interstate custody disputes is controlled in this state by the former Uniform Child Custody Jurisdiction Act (UCCJA). An attempt to predetermine the "home state" is a circumvention of the UCCJA, and is an attempt to deprive this state of its lawful jurisdiction of the citizens according to the Act. Gouse v. Wilson, 207 Ga. App. 574, 428 S.E.2d 571 (1993) (decided under former Uniform Child Custody Jurisdiction Act).
JURISDICTION WHERE ANOTHER STATE HAS JURISDICTION. --When it appears that another state has jurisdiction of case under paragraph (a)(1) or (a)(2) of former § 19-9-43, Georgia courts do not have such jurisdiction unless the children are abandoned or an emergency exists which would justify assumption of jurisdiction by this state. Douse v. Douse, 157 Ga. App. 524, 277 S.E.2d 807 (1981) (decided under former Uniform Child Custody Jurisdiction Act).
ATTEMPT TO RETAIN JURISDICTION BY STIPULATION IN DECREE. --An Ohio court's attempt to retain jurisdiction of the matter of child custody by so stipulating in its divorce decree was a nullity, even though it is based on the agreement of the parties. Gouse v. Wilson, 207 Ga. App. 574, 428 S.E.2d 571 (1993) (decided under former Uniform Child Custody Jurisdiction Act).
DETERMINING JURISDICTION WHEN EMERGENCY IS CLAIMED. --When a petitioner seeking modification of an out-of-state custody decree alleges that the child is in need of emergency protection, the trial court was authorized under subparagraph (a)(3)(B) of former § 19-9-43 to take temporary jurisdiction and even to make an award of temporary custody. Under the relevant statutory provisions, however, the court is under a duty before proceeding to modify an out-of-state decree to ascertain whether the allegations contained in the petition are valid, and whether the petitioner has complied with the statutory requirements and is entitled to bring further proceedings in the Georgia courts. Osgood v. Dent, 167 Ga. App. 406, 306 S.E.2d 698 (1983); Galvez v. Galvez, 221 Ga. App. 644, 472 S.E.2d 492 (1996) (decided under former Uniform Child Custody Jurisdiction Act).
Trial court lacked jurisdiction to hear an action for modification brought by father, where the mother had legal custody and lived with the child in a different state, and the child was temporarily visiting father in Georgia; findings of the court that abuse of the child may have occurred and that the mother's nonmarital cohabitation may have been detrimental to the child were not sufficient to support the exercise of emergency jurisdiction. In re M.M., 222 Ga. App. 313, 474 S.E.2d 53 (1996) (decided under former Uniform Child Custody Jurisdiction Act).
Purpose of the emergency exception to home state jurisdiction is to allow an appropriate non-home state court to exercise jurisdiction where the circumstances and well-being of the child demand immediate action; thus, because no true emergency existed, the Georgia court properly refused to take jurisdiction in a child custody case involving a child who resided in Virginia. Rozier v. Berto, 230 Ga. App. 427, 496 S.E.2d 544 (1998) (decided under former Uniform Child Custody Jurisdiction Act).
SPECIFIC OBJECTION TO JURISDICTION. --When the home state of the child was not Georgia and the mother as custodial parent specifically objected to jurisdiction over her person and the subject matter without making an appearance in court, the state superior court had no jurisdiction over this custody determination. Baker v. Ashburn, 179 Ga. App. 757, 347 S.E.2d 660, aff'd, 256 Ga. 507, 350 S.E.2d 437 (1986) (decided under former Uniform Child Custody Jurisdiction Act).
COURT HAD JURISDICTION of the child and the issue of the child's custody since the child had continually lived in Georgia and this was the child's home state. Gregg v. Barnes, 203 Ga. App. 549, 417 S.E.2d 206, cert. denied, 203 Ga. App. 906, 417 S.E.2d 206 (1992) (decided under former Uniform Child Custody Jurisdiction Act).
Because the only reason the child had a growing connection with another state was that the father moved the child there without notice, jurisdiction in Georgia was properly based on findings that it was in the best interest of the child, the mother had a significant connection with the state, and substantial evidence concerning the child's present and future needs was available in Georgia. Holt v. Leiter, 232 Ga. App. 376, 501 S.E.2d 879 (1998) (decided under former Uniform Child Custody Jurisdiction Act).
Georgia court had jurisdiction of noncustodial father's action for modification of custody where no other state had jurisdiction as the "home state" of the children. Mock v. Smith, 233 Ga. App. 36, 503 S.E.2d 319 (1998) (decided under former Uniform Child Custody Jurisdiction Act).
Georgia court could assume jurisdiction pursuant to paragraph (a)(2) of former § 19-9-43 because substantial evidence was available in Georgia bearing on the children's past and future activities, relationships, and care; in addition, jurisdiction could be assumed pursuant to paragraph (a)(4) of that section as no other state had jurisdiction. Wylie v. Blatchley, 237 Ga. App. 563, 515 S.E.2d 855 (1999) (decided under former Uniform Child Custody Jurisdiction Act).
TRIAL COURT LACKED JURISDICTION over a resident noncustodial father's action against a nonresident custodial mother seeking to modify visitation rights and to hold the mother in contempt of the visitation provisions of a Georgia decree since personal service had not been made on the mother in Georgia. Ashburn v. Baker, 256 Ga. 507, 350 S.E.2d 437 (1986); Ruckstuhl v. Corley, 218 Ga. App. 660, 462 S.E.2d 795 (1995) (decided under former Uniform Child Custody Jurisdiction Act).
Where the mother removed the minor child of the parties from Georgia to the Federal Republic of Germany when there was in effect no court order providing for custody of the child and she subsequently obtained from a German court a decree awarding custody to her, and the father later filed a complaint in a Georgia superior court and attempted to serve the mother in Germany by publication, the Georgia court was without jurisdiction to award custody of the child to the father. Richardson v. Richardson, 257 Ga. 101, 355 S.E.2d 664 (1987) (decided under former Uniform Child Custody Jurisdiction Act).
In an action by a noncustodial parent, filed in Georgia, for modification of the visitation provisions of the divorce decree, the assertion by the nonresident custodial parent of a counterclaim for modification of support did not constitute a waiver of the custodial parent's right to insist on litigating custody matters in Texas, the home state of the parties' child. Kemp v. Sharp, 261 Ga. 600, 409 S.E.2d 204 (1991) (decided under former Uniform Child Custody Jurisdiction Act).
Trial court lacked jurisdiction to hear an action for modification of custody brought by father, where the mother had legal custody and lived with the child in a different state, the child was temporarily visiting the father in Georgia, there was no extreme emergency authorizing the conduct of the father in denying custody to the mother, and there was not substantial evidence otherwise sufficient to vest jurisdiction in the Georgia court. Lightfoot v. Lightfoot, 210 Ga. App. 400, 436 S.E.2d 700 (1993) (decided under former Uniform Child Custody Jurisdiction Act).
Even though the Tennessee court had declined to exercise the court's jurisdiction over a custody matter, the Georgia court did not gain jurisdiction because, under the former Uniform Child Custody and Jurisdiction Act, jurisdiction could not be conferred by stipulation, agreement, or consent of the parties or another court. Williams v. Goss, 211 Ga. App. 195, 438 S.E.2d 670 (1993) (decided under former Uniform Child Custody Jurisdiction Act).
Where Tennessee was the house state of a minor child, the fact that the child indicated a preference to reside with his father who lived in Georgia did not create a significant connection between the child and the state where the parent resided so as to confer jurisdiction of custody proceedings in the Georgia courts. Williams v. Goss, 211 Ga. App. 195, 438 S.E.2d 670 (1993) (decided under former Uniform Child Custody Jurisdiction Act).
Trial court lacked jurisdiction to hear an action for modification of custody brought by the father because the father did not have standing until more than six months after the date of the filing and Florida was the state with the closest connections to the child and family. Mezquita v. Campbell, 238 Ga. App. 396, 519 S.E.2d 27 (1999) (decided under former Uniform Child Custody Jurisdiction Act).
PURPOSE. --Former § 19-9-47 was not a separate grant of jurisdiction over interstate child custody proceedings, but established a discretionary abstention doctrine. Mulle v. Yount, 211 Ga. App. 584, 440 S.E.2d 210 (1993) (decided under former § 19-9-47).
LIMITED JURISDICTION. --When the trial court held that it did not have jurisdiction over child custody because of the pendency of an appeal in another state, custody ceased to be a contestable issue, and the court was not precluded from addressing issues over which the court had jurisdiction, including divorce. Norowski v. Norowski, 267 Ga. 841, 483 S.E.2d 577 (1997) (decided under former § 19-9-47).
While a trial court had a limited grant of authority under subsection (f) of former § 19-9-47 to dismiss a custody proceeding on the ground of forum non conveniens, it could not dismiss the divorce proceeding as well. Holtsclaw v. Holtsclaw, 269 Ga. 163, 496 S.E.2d 262 (1998); Patterson v. Patterson, 271 Ga. 306, 519 S.E.2d 438 (1999) (decided under former § 19-9-47).
INQUIRY REQUIRED. --Trial court erred in dismissing a child custody proceeding without an inquiry into whether the law of the other state involved in the case would allow a court of that state to exercise jurisdiction. Patterson v. Patterson, 271 Ga. 306, 519 S.E.2d 438 (1999) (decided under former § 19-9-47).
In father's action seeking modification of a child custody order, the trial court properly applied the Uniform Child Custody Jurisdiction Act (UCCJA) to resolve the parties' dispute because the UCCJA was the law in effect when the father filed his petition seeking modification of a child custody order, and the trial court did not err by concluding that the father's petition under former O.C.G.A. § 19-9-43(a)(1)(B) was timely because O.C.G.A. § 1-3-1(d)(3) extended the six-month period the father had to file the petition from a Saturday to the following Monday. Parke v. Fant, 260 Ga. App. 84, 578 S.E.2d 896 (2003).
RESEARCH REFERENCES
AM. JUR. 2D. --24A Am. Jur. 2d, Divorce and Separation, §§ 868, 874, 870, 878. 39 Am. Jur. 2d, Habeas Corpus, §§ 95 et seq., 107.
C.J.S. --27C C.J.S., Divorce, §§ 611, 612, 618, 629, 635. 39 C.J.S., Habeas Corpus, § 241 et seq. 43 C.J.S., Infants, §§ 10 et seq. 67A C.J.S., Parent and Child, § 99 et seq.
U.L.A. --Uniform Child Custody Jurisdiction Act (U.L.A.) § 3.
ALR. --Removal of child from state pending proceedings for custody as defeating jurisdiction to award custody, 171 ALR 1405.
Jurisdiction of court to award custody of child domiciled in state but physically outside it, 9 ALR2d 434.
Child custody: when does state that issued previous custody determination have continuing jurisdiction under Uniform Child Custody Jurisdiction Act (UCCJA) or Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A, 83 ALR4th 742.
Significant connection jurisdiction of court under § 3(a)(2) of the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A(c)(2)(B), 5 ALR5th 550; 67 ALR5th 1.
Abandonment and emergency jurisdiction of court under § 3(a)(3) of the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A(c)(2)(C), 5 ALR5th 788.
Home state jurisdiction of court under § 3(a)(1) of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A(c)(2)(A), 6 ALR5th 1.
Default jurisdiction of court under § 3(a)(4) of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A(c)(2)(D), 6 ALR5th 69.
Home state jurisdiction of court to modify foreign child custody decree under §§ 3(a)(1) and 14(a)(2) of Uniform Child Custody Jurisdiction Act (UCCJA) and Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. §§ 1738A(c)(2)(A) and 1738A(f)(1), 72 ALR5th 249.
Declining jurisdiction to modify prior child custody decree under § 14(a)(1) of Uniform Child Custody Jurisdiction Act (UCCJA) and Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. § 1738A(f)(2), 73 ALR5th 185.
Abandonment jurisdiction of court under §§ 3(a)(3)(i) and 14(a) of Uniform Child Custody Jurisdiction Act and Parental Kidnapping Prevention Act, 28 USCA §§ 1738A(c)(2)(C)(i) and 1738A(f), notwithstanding existence of prior valid custody decree rendered by second state, 78 ALR5th 465.
Emergency jurisdiction of court under §§ 3(a)(3)(ii) and 14(a) of Uniform Child Custody Jurisdiction Act and Parental Kidnapping Prevention Act, 28 USCA §§ 1738A(c)(2)(C)(ii) and 1738A(f), to protect interests of child notwithstanding existence of prior, valid custody decree rendered by another state, 80 ALR5th 117.