Arizona Family Law Lawyer & Attorney : NRG - Nirenstein Ruotolo Group

New York has continuing jurisdiction over a custody dispute involving a child who, at the time his father retained him following visitation, had lived in Norway with the custodial mother for two years, the New York Supreme Court, Kings County, has decided in EB v. EFB, N.Y. Sup. Ct., No. 9159/02, 1/4/05.

Addressing for the first time application of the Uniform Child Custody Jurisdiction Enforcement Act in a case where the underlying custody order was issued prior to the Act's effective date and the modification request was made after such date, the court rebuffed the mother's contention that Norway has home state jurisdiction under the Act's predecessor, the UCCJA. It said that because the father remained in New York following the parties' divorce and issuance of the custody order, the state retained jurisdiction

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A Texas court erred in designating Illinois as the home state of a divorcing couple's child, who had not spent six consecutive months in the latter state at the time of the divorce, the Texas Court of Appeals, 13th District, held Feb. 10th in Nagubadi v. Nagubadi, Tex. Ct. App., No. 13-02-621-CV, 2/10/05.

The Court found that the parents and child were all living in Texas when the mother filed for divorce but that by the time the final decree was entered the mother was completing a two-year medical residency program in Dayton, Ohio, and the father was living in Chicago.

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In Weesner v. Johnson, Ark. Ct. App., No. 04-784, 1/19/05, it was held that the trial court erred as a matter of law in assuming jurisdiction over the custody aspect of a divorce case where the parties' child had never lived in Arkansas.

At trial, the resident father, who had requested custody in his divorce petition, acknowledged that the child had been born and resided in California, and said that the mother and child had also lived in Arizona and Nevada for brief periods. The mother, however, moved for a dismissal of the custody matter and submitted an affidavit maintaining that while she and the child had moved around the state, they had always resided in California. (The parties had separated prior to the child's birth in 2001.) The trial court held that it had custody jurisdiction over the parties and the subject matter.

Examining the the Uniform Child Custody Jurisdiction and Enforcement Act, the Court held that Arkansas clearly did not have home state jurisdiction because the child had never lived there. Likewise, the Court found that the father could not rely on significant connection jurisdiction, because the child had absolutely none with Arkansas. Further finding that this case did not present the situation in which another state declines jurisdiction, the Court also rejected the father's reliance on the UCCJEA provision under which Arkansas retains jurisdiction if no court of any other state would have jurisdiction.

Of note, the Father appeared without an attorney. Probably not the best idea when faced with a UCCJEA issue.

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In In re Ashley D., 2005 WL 45052 (Cal.App. 4 Dist.)(01/11/05), Mother appealed from the juvenile court's order which terminated legal guardianship for her daughter, Ashley D. (born in 1991), as well as any remaining jurisdiction over Ashley's case. Ashley also separately appealled the order. On appeal, Mother and Ashley did not contest the order terminating guardianship, they only challenged the termination of California jurisdiction, with deference to pending juvenile dependency proceedings in Oregon.

In doing so, Mother and Ashley asserted that the juvenile court erred in terminating California jurisdiction over the dependency proceedings arguing that under the Uniform Child Custody Jurisdiction and Enforcement Act (Fam.Code, § 3400, et.seq.), Oregon erred in adjudicating a petition for juvenile dependency concerning Ashley because California already had jurisdiction. Mother and Ashley further argued that the California juvenile court abused its discretion in terminating California's jurisdiction and deferring the matter to Oregon after granting the Oregon Department of Human Services's (ODHS) Welfare and Institutions Code section 388 petition terminating legal guardianship and California jurisdiction.

The California Court of Appeals foundthat there was no abuse of discretion and affirmed the judgment holding that the record sufficiently supports a reasonable finding that allowing Ashley's juvenile dependency matter to continue in Oregon, where she had been living for at least four years and had been the subject of juvenile dependency proceedings there for almost three years, was appropriate and in Ashley's best interest.

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