A. Exercise of jurisdiction
The only way that a modification of child custody may be had by a parent wishing to do so is to bring their action in the proper jurisdiction. Etzion v. Evans, 247Ga. 390 (Ga. 1981) (decided under former Uniform Child Custody Jurisdiction Act, now the Uniform Child Custody Jurisdiction and Enforcement Act, hereinafter referred to as the “UCCJEA"), and it is this issue which must first be settled by the XXXX County courts, regardless of the outcome of this evaluation. The initial jurisdiction question may be answered by examination of the standards for this sort of determination found at OCGA § 19-9-61. Under the guidelines set forth by that section for an initial custody determination, the existence of which is the basis for any valid modification action subsequently brought, the only answer to this issue is thatGeorgia is the state most entitled to exercise jurisdiction over this matter. The standards which direct this conclusion are found at subsection (2), which acts as a method of exercise of jurisdiction, and therefore as a passkey to Court evaluation of the dispute tendered. That subsection provides jurisdiction only if the courts of another state do not have jurisdiction under the standards of subsection (1), which requires that the foreign state meet certain “home state" standards, and includes such factors as the easy availability within this State of substantial evidence concerning the child’s care, protection, training, and personal relationships among the standards to be considered.
Another method exists for a State to exercise jurisdiction. While the South Carolina court system explicitly assumed jurisdiction over the matter on the blank invocation of the emergency jurisdiction provisions of its State’s enactment of the Uniform Child Custody Jurisdiction and Enforcement Act, relating absolutely no statements to justify such a finding of an “emergency", Defendant is not without a remedy in this matter by settling the contested issue of proper jurisdiction, since Georgia courts will not tread where it appears that another State has jurisdiction, unless the child in question has been abandoned or such an emergency situation exists, Douse v. Douse, 157 Ga.App. 524 (Ct. App. 1981) (decided under former Uniform Child Custody Jurisdiction Act), and a decision in favor of the view urged by Plaintiff will settle the matter as lying squarely in Georgia. Without any description of the alleged “emergency" upon which the South Carolina court system relied, it is impossible to ascertain from the order the basis for this assumption of jurisdiction. When no true emergency exists justifying an assumption or taking of jurisdiction, Georgia courts are actually required by law not to assume such jurisdiction. Rozier v. Berto, 230 Ga.App. 427 (Ct. App. 1998) (decided under former Uniform Child Custody Jurisdiction Act).
B. “Home state"
OCGA § 19-9-41(7) defines “home state" as “the state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding." Under the provisions of subsection (13)(A)(1), a “person acting as parent" is a person not the parent of a child, which describes Defendant’s wife in the present situation, who has “physical custody of the child,… within one year immediately before the commencement of a child custody proceeding" and, as further described in subsection (B), “has been awarded legal custody by a court or claims a right to legal custody under the laws of this state." This section does not comment on the propriety of the claim of the “person acting as parent", but instead merely refers to their claiming of a right, whether correctly or otherwise, which again meets the present condition of Defendant’s wife, who has resided with XXXX inXXXXCounty for approximately the past year. These contacts are crucial to this determination, as they form an important part of the analysis which must take place.
The case of Graham v. Hajosy, 159 Ga.App. 466 (Ct. App. 1981) (decided under former Uniform Child Custody Jurisdiction Act), even though reasoned under the former version of the Uniform Child Custody Jurisdiction Act, was decided under substantially similar provisions to the UCCJEA presently enforced and holds that custody proceedings should take place in the State with which both the child in question and her family have the closest connections, something decidedly in favor of the view taken in this case by Plaintiff who, even though not a resident of Georgia, works in this State and had her divorce from Defendant in this state. This analysis is very similar to the analysis of the “home state" proper for jurisdiction.
When the only reason that a child had a growing connection with another state was that the father moved the child to that location without notice to the mother, jurisdiction in Georgia was proper based on the best-interest-of-the-child standard, which standard includes such relevant information as the availability of records pertaining to the health, education, and care of the child in question, and an evaluation of the significant contacts of the parties, all of which clearly weigh in favor of Plaintiff’s stance and against any endorsement of the point of view held by Defendant and his counsel. Under the former enactment of the Uniform Child Custody Jurisdiction Act, § 19-9-43 (a)(2) this standard was a basis for assumption of jurisdiction by Georgia courts. This standard is remarkably similar to the “home state" standard.
It is settled law that Georgia courts will refuse to relitigate the issue of child custody where the child in question was improperly removed from another state. Bishop v. Bishop, 247Ga. 56 (Ga. 1981) (decided under former Uniform Child Custody Jurisdiction Act).
C. Establish proper jurisdiction
It takes more than mere stipulation in a decree for a state to retain jurisdiction. Galvez v. Galvez, 221 Ga.App. 644 (Ct. App. 1996) (decided under former Uniform Child Custody Jurisdiction Act). Courts are under an express duty 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. Id.
See Henderson v. Justice, 223 Ga.App. 591 (Ct. App. 1996) (decided under former Uniform Child Custody Jurisdiction Act), in which it was held, under provisions of the older Uniform Child Custody Jurisdiction Act and the federal Parental Kidnapping Prevention Act, embodied at 28 U.S.C. 1738 et seq., that a trial court was without power to modify a decree where that court failed to address whether jurisdiction had been lost or declined by the original court issuing the contested decree. This is analogous to the present situation. Although the South Carolina trial court did address the issue of Georgia jurisdiction, it explicitly required that its order be domesticated or jurisdiction relinquished explicitly by the Georgia court system, and was acting in its emergency capacity only, meaning that jurisdiction was not present in South Carolina since the Order in the Georgia Court system, binding over the parties, was never domesticated and the Georgia court system never relinquished jurisdiction. This issue has already been decided and litigated, with the question answered contrary to the position taken by Defendant’s counsel, in the case of Bonar v. Bonar, 246 Ga.App. 11 (Ct. App. 2000). Even though that case was decided under the previous version of the Uniform Child Custody Jurisdiction Act, it was held that the Louisiana trial court was without power to modify the existing child custody award becauseGeorgia had not relinquished its continuing jurisdiction over the matter.
D. Necessity of a hearing
A hearing on the issue of proper jurisdiction is required in this case. It is error for a trial court not to first inquire into whether the law of the other state(s) involved, when invoked, would allow a court of that state to even exercise jurisdiction at all. Patterson v. Patterson, 271Ga. 306 (Ga. 1999) (decided under former Uniform Child Custody Jurisdiction Act). OCGA § 19-9-45 explicitly states that a “child custody determination made by a court of this state that had jurisdiction under this article binds all persons who have been served in accordance with the laws of this state…and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact, except to the extent the determination is modified." A hearing is therefore required since the assertion ofGeorgia jurisdiction, and the consequent determination that no other State has jurisdiction properly, would be binding on future similar actions, were they to arise.
Any hearing on this issue would necessarily involve a determination of the actual “home state" of the child in question. Under the current version of the Uniform Child Custody Jurisdiction Act, the jurisdiction of the court over child custody modification actions, including visitation and similar matters, lies in the “home state" of the child, which is presentlyGeorgia, as it has been for some time, and in which the initial child custody determination was made.